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 Can Yeginsu and Jessica Elliott
On 1 July 2014, the Grand Chamber of the European Court of Human Rights held that France’s ban on wearing full-face veils in public pursued a legitimate aim because it reflected a “choice of society”. Although the Court found that the blanket prohibition amounted to an interference with the religious rights of the minority in France that wore the full-face veil, it was justified because it protected the rights of others to have the option of facial interaction with that minority. The Court accepted that this right of potential facial interaction forms part of the minimum standards of “living together” in French society and outweighs the right of the minority to express their religious beliefs through wearing a full-face veil.
The result of the decision is that ‘SAS’, the applicant Muslim woman in the case, was held not to have suffered a violation of her religious rights under the European Convention on Human Rights. S.A.S. v France is another recent example of the controversies which can arise in the field of law and religion but its significance goes beyond that: the case has given rise to a full and carefully-reasoned judgment from the Strasbourg Court which revisits and, in places, develops its jurisprudence in this difficult area of the law.
The Decision
Article 9 is the principal protection available for religious freedom under the Convention. When examining a potential Article 9 violation, the Strasbourg Court must establish whether the act complained of – in this case, the ban on the veil – interferes with the applicant’s religious rights. If so, the Court will then consider whether or not that interference is: (1) prescribed by law; (2) pursuant to a legitimate aim; and (3) necessary and proportionate in a democratic society.
In S.A.S, the Court found that the ban was prescribed by French law (the Law No. 2010-1192) and constituted an interference with the applicant’s religious beliefs. The critical issues for the Court were whether or not the blanket prohibition was: (i) in pursuit of a legitimate aim; and, if so, (ii) necessary in a democratic society, that is to say, proportionate.
The second paragraph of Article 9 sets out the only legitimate grounds on which religious rights can be interfered with: public safety, public order, health or morals, or for the protection of the rights and freedoms of others. The Court dismissed the French Government’s arguments based on public safety, and considered the other three arguments put forward – that the veil fell short of the minimum requirements of life in society; that it harmed equality between men and women; and that it was a manifestation of disrespect for human dignity – under the heading of the ‘rights and freedoms of others’. The Court rejected the dignity and gender equality arguments, and focused on whether the requirements of “living together” could be a legitimate aim. The Court found that they could. The core of its reasoning is at §122 of the judgment:
“[The Court] can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing in those places which would call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.”
The Court’s assessment of proportionality ultimately came down to the fact that the sanctions were, in the Court’s view, light (albeit criminal) and reflected a choice of society. France’s margin of appreciation in this area was such that it could, and should, make this choice without interference from an international court.
The Dissent
The joint partly dissenting opinion of Judges Nussberger and Jäderblom voiced a number of criticisms of the majority approach, of which the following are an important few:
- The concept of ‘living together’ as a right is ‘far-fetched and vague’.
- It seems unlikely that the veil itself is at the root of the French ban, rather than the philosophy linked to it. French parliamentary reports revealed that the true concerns are linked to the meaning of the veil: as ‘a form of subservience’, because of its ‘dehumanising violence’, and because of the fact that it represents ‘the self-confinement of any individual who cuts himself off from others whilst living among them’.
- The opinion of the majority is wrong to ignore an individual’s right to express herself, or her beliefs, in a way that shocks others. The Court’s mandate is to protect expressions of rights which ‘offend, shock and disturb’, as well as those that are favourably received.
A Group of Women Wearing Burkas. Afghanistan women wait outside a USAID-supported health care clinic. Photo by Nitin Madhav (USAID). Public domain via Wikimedia Commons.
The Discussion
Some actions, whether religiously motivated or otherwise, could be so objectively offensive to the operation of society that they require limitation in the name of ‘living together’. However, where the action in question is non-violent and generally without external impact, extreme care must be exercised in establishing why society’s right not to be exposed to an act outweighs the individual’s right to perform it. This is all the more so the case where the action in question is an expression of a religion which, as the judgment acknowledges, can too often be subject to social prejudice.
One of the key difficulties with the opinion of the majority in S.A.S is the extent to which the Strasbourg Court allows ‘society’s choice’ to govern state action where distinctly unpopular rights are threatened. The Convention seeks to establish and to enforce European standards of protection for the rights of every individual. The Convention is an instrument which supports ‘democratic societies’. This is not in the political sense of allowing the dominant collective voice to decide the fate of all; societies are capable of achieving that without assistance. The Convention should ensure that the voices of all groups and individuals in the society – popular or otherwise – are heard, and afforded proportionate weight where state aims threaten individual rights.
As the partly dissenting opinion points out, Western societies are fearful of what the veil connotes. The grounds of argument rejected by the Court were in all likelihood the more honest ones: there was clear social discomfort about a practice which ran counter to ideas of gender equality and human dignity. The Court rightly discounted such arguments where the applicant could show that wearing the veil was a matter of choice. Absent the issue of force, it is simply a question of whether covering the face is so offensive to others that it outweighs the religious importance of the action. Some may well ask whether or not the S.A.S judgment has explained why the alleged social offence caused is more important than the interference with a right which is at the core of international protection.
The majority judgment is significant also for the arguments that the Court rejected. Gender equality was not accepted as a legitimate aim by the Court. This is a shift. In its previous case law on the Islamic headscarf, the Court had stated that “it appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination”: Dahlab v Switzerland; Leyla Sahin v Turkey. The position has changed:
“a State Party cannot invoke gender equality in order to ban a practice that is defended by women […] in the context of the exercise of rights enshrined in those provisions, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (S.A.S., §119).
Similarly, the Court rejected the State’s public safety argument, finding that in the absence of a general threat to public safety, a blanket ban was a disproportionate interference with the applicant’s Article 9 right. That finding is in contrast to the Court’s earlier decision in Mann Singh v France, when the Court accepted France’s restrictions of religious rights on the grounds of public safety without requiring evidence of the necessity of the restriction.
Although this decision accords with the Court’s general approach to the protection of religious dress under Article 9, it significantly shifts the focus onto the choices of individual societies as legitimate restrictions on religious rights. Much attention was given by the Court to the particular consensus of French society as a counterbalance to the identified right of a religious minority; this could represent a considerable enhancement of the scope of the ‘rights and freedoms of others’ limitation under Article 9(2). It remains to be seen how the Strasbourg Court will define the limits of the democratic choice of Member States in future decisions: this is, and will remain, a difficult and developing area of the law.
Can Yeginsu is a barrister at 4 New Square Chambers in London. He is the co-author (with Sir James Dingemans, Tom Cross and Hafsah Masood) of The Protections for Religious Rights: Law and Practice. Jessica Elliott is a barrister at One Crown Office Row Chambers in London.
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