On 1 July 2014, the Grand Chamber of the European Court of Human Rights (ECHR) announced its latest judgment affirming France’s ban on full-face veil (burqa law) in public (SAS v. France). Almost a decade after the 2005 controversial decision by the Grand Chamber to uphold Turkey’s headscarf ban in Universities (Leyla Sahin v. Turkey), the ECHR made it clear that Muslim women’s individual rights of religious freedom (Article 9) will not be protected. Although the Court’s main arguments were not the same in each case, both judgments are equally questionable from the point of view of protecting religious freedom and of the exclusion of Muslim women from public space.
The recent judgment was brought to the ECHR by an unnamed French woman known only as “SAS” against the law introduced in 2011 that makes it illegal for anyone to cover their face in a public place. Although the legislation includes hoods, face-masks, and helmets, it is understood to be the first legislation against the full-face veil in Europe. A similar ban was also passed in Belgium after the French law. France was also the first country to ban the wearing of “conspicuous religious symbols” – directed at the wearing of the headscarf in public high schools — in 2004. Since then several European countries have established policies restricting Muslim religious dress.
The French law targeted all public places, defined as anywhere not the home. Penalties for violating the law include fines and citizenship lessons designed to remind the offender of the “republican values of tolerance and respect for human dignity, and to raise awareness of her penal and civil responsibility and duties imposed life in society.”
SAS argued the ban on the full-face veil violated several articles of the European Convention and was “inhumane and degrading, against the right of respect for family and private life, freedom of thought, conscience and religion, freedom of speech and discriminatory.” She did not challenge the requirement to remove scarves, veils and turbans for security checks, also upheld by the ECHR. The ECHR rejected her argument and accepted the main argument made by the government: that the state has a legitimate interest in promoting a certain idea of “living together.”
By now, it is clear that Article 9 of the European Convention does not protect freedom of religion when the subject is a woman and the religion is Islam. While this may seem harsh, consider the ECHR’s 2011 judgment in Lautsi v. Italy, which found the display of the crucifix in Italian state schools compatible with secularism.
In Lautsi case, the Court argued that the symbol did not significantly impact the denominational neutrality of Italian schools because the crucifix is part of Italian culture. Human rights scholars have not missed the contrast between the Italian case and the earlier 2005 decision in Leyla Sahin v Turkey where the Court found that the wearing of the headscarf by students was not compatible with the principle of laicité or secularism.
The Court did not make a value judgment in SAS case about Islam, women’ rights in Islamic societies, or gender equality, as it did in earlier cases where they upheld bans on the wearing of the headscarf by teachers and students in France, Turkey and Switzerland. In all cases involving Islamic dress codes, the ECHR emphasized the “margin of appreciation” rule, which permits the court to defer to national laws.
The ECHR acted politically and opportunistically not to challenge France’s strong Republicanism and principles of laicité, sacrificing the rights of the small minority of Muslims who wear the full-face veil. Rather than protecting the individual freedom of the 2000 women, the ECHR protected the majority view of France.
The ECHR is the most powerful supra national human rights court and its decisions have widespread impact. Several countries in Europe, such as Denmark, Norway, Spain, Austria, and even the UK, have already started to discuss whether to create similar laws banning the burqa in public places. This raises concerns that cases related to the cultural behavior and religious practices of minorities could shift public opinion dangerously away from the principles of multiculturalism, democracy, human rights and religious tolerance.
The most recent law bans the full-face veil, but tomorrow, the prohibitions may be against halal food, circumcision, the location of a mosque or the visibility of a minaret; even religious education might be banned for reasons of public health, security or cultural integration. Muslims, Roma, and to some extent Jews and Sikhs, are already struggling to be accepted as equal citizens in Europe, where right wing extremism is rising, in a situation of economic crisis.
The ECHR should be extremely careful in its decisions, given the growth of nationalism, xenophobia, and anti-immigrant sentiment in Europe.Considering this context, the EHCR’s main argument in this latest judgment is worrisome, since it accepted France’s view that covering the face in public runs counter to the society’s notion of “living together,” even though this is not one of the principles of the European Convention.
The Court recognized that the concept of “living together” was problematic (Para 122). And, even in using the “wide margin of appreciation” rule, the Court acknowledged that it should “engage in a careful examination” to avoid majority’s subordination of minorities. Considering the Court’s own rules, the main reasoning for the full face veil ban—“living together” seems to be inconsistent with the Court’s own jurisprudence.
Further concerns were raised about Islamophobic remarks during the adoption debate of the French Burqa Law, and evidence that prejudice and intolerance against Muslims in French society influenced the adoption of the law. Such concerns were more strongly raised by the two dissenting opinions. The dissent found the Court’s insensitivity to what’s needed to ensure tolerance between the vast majority and a small minority could increase tensions (Para 14). The dissenting opinion was especially critical of prioritizing “living together,” not even a Convention principle, over “concrete individual rights” guaranteed by the Convention.
While the integration of Muslims and other immigrants across Europe is a legitimate concern, it is vitally important the ECHR’s constructive role. The decision in SAS v France is a dangerous jurisprudential opening for future cases involving the religious and cultural practices of minorities. The French burqa law has created discomfort among Muslims. By upholding the law, the European court deepens the mistrust between the majority of citizens and religious minorities.
Headline image credit: Arabic woman in Muslim religious dress, © Vadmary, via iStock Photo..
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By Dirk van Zyl Smit
The sentences of those who murder more than one person, or who kill in particularly gruesome circumstances are naturally the stuff of headlines. So it was again on 18 February when a specially constituted bench of the Court of Appeal, headed by the Lord Chief Justice, ruled that there is no legal bar on whole life orders for particularly heinous offences. In such cases, judges can continue to order that offenders deserve to remain in prison for the rest of their lives.
The case arose because in July 2013, the Grand Chamber of the European Court of Human Rights found in Vinter and others v United Kingdom that even offenders on whom whole life orders had been imposed had to have a prospect of release. To deny them this hope meant that the punishment was inhuman and degrading, thus infringing the prohibition of such punishments in Article 3 of the European Convention of Human Rights. It had to be clear to offenders at the time of sentencing that if circumstances changed and there was no further justification for continuing their imprisonment, there was an appropriate procedure in place for reconsidering continued detention. English legislation allowing for the release of prisoners facing whole life sentences only on compassionate grounds was deemed insufficient to give prisoners hope as the Secretary of State for Justice had stated in the ‘lifers’ manual’ that he would only consider the release on compassionate grounds of prisoners who were terminally ill or seriously incapacitated. In the view of the European Court, allowing someone out of prison only when they are at death’s door was not ‘release’ in the full sense of the term. This judgment left some English courts uncertain about whether they should impose whole life sentences, particularly as the UK government declared that it was reluctant to change the law or policy in terms of which it should be applied.
The Court of Appeal’s finding was presented by a large section of the press as a ruling that prisoners subject to life orders could be denied all prospect of release. Even the BBC led with ‘Court of Appeal upholds whole-life principle’.
The reality is far more complex. The European Court of Human Rights never held that courts could not sentence someone to whole life imprisonment. The confirmation that judges could continue to impose this sentence was therefore unsurprising. What the European Court had established was the principle that, even where such sentences were imposed, there still had to be a prospect of release for the offender who could demonstrate that his continued detention was no longer justified, because, for example he no longer posed a risk to society.
Close reading of the judgment shows that the Court of Appeal accepted this principle. It disagreed with the European Court only on whether the powers of the Secretary of State for Justice were so limited that he might not be able to release someone when required to do so. According to the Court of Appeal, the European Court had been misled by the lifers’ manual, which wrongly purported to limit the release powers of the Secretary of State. The Court of Appeal explained that as a matter of law, the Secretary of State was required to exercise his powers in conformity with the European Convention on Human Rights and the common law. This meant that in every case where a prisoner claims that there are exceptional circumstances that justify his release from a whole life sentence, the Secretary for State will have to consider the claim and give a reasoned decision for allowing or rejecting it.
This outcome is rich in irony. Chris Grayling, the Secretary of State for Justice, has been scathingly critical of the European Court of Human Rights’ decision in the Vinter case, and saw the decision of the Court of Appeal as restoring whole life sentences. He will now be responsible in his official capacity for the procedure which is designed to ensure prisoners subject to whole life orders retain a prospect of release, something which he resisted by declining to amend the lifers’ manual. Nor will the Secretary of State be able to allow his antipathy to the release of such prisoners to influence his decisions, which, the Court of Appeal emphasised, will be subject to the rigours of judicial review as required by the common law.
Together with Pete Weatherby QC and Simon Creighton, I argued in a recent article in the Human Rights Law Review that the consequences of the European Court’s judgment in the Vinter case are far-reaching. In order to ensure that prisoners serving whole life sentences have a hope of release, prison regimes will have to provide them with opportunities to prepare themselves to lead a crime free life; they must have an opportunity to rehabilitate.
Moreover, these release procedures must meet the requirements of due process. We recommend that the Secretary of State refer the release applications of prisoners serving whole life sentences to the Parole Board. Although current law, as interpreted by the Court of Appeal, would allow him to take the final decision in such cases, we propose that he should give the Parole Board the power to decide for it is fundamentally wrong for a politician to have the final say over whether someone should be released.
Finally, we suggest that the Secretary of State announces as a matter of urgency when whole life sentences will be reconsidered routinely. We suggest that this should happen after no more than 25 years have been served and at regular intervals thereafter.
In the end, what matters is that even the worst and most reviled offenders are treated fairly. Justice requires that regard be had for their rights too. It should not have required Europe to spell out that it was necessary to do so. The Court of Appeal has now gently reminded the Secretary of State of his common law duties in this regard too. One can only hope that misplaced opposition to European intervention does not lead to a failure to act.
Dirk van Zyl Smit is Professor of Comparative and International Penal Law at the University of Nottingham. He is the author of “Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What Is to Be Done?” (available to read for free for a limited time) in the Human Rights Law Review. His most recent OUP book is Principles of European Prison Law and Policy: Penology and Human Rights (written with Sonja Snacken). He is currently leading a research project on Life imprisonment worldwide.
Human Rights Law Review promotes awareness, knowledge, and discussion on matters of human rights law and policy. The Review publishes critical articles that consider human rights in their various contexts, from global to national levels, book reviews, and a section dedicated to analysis of recent jurisprudence and practice of the UN and regional human rights systems.
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