ECHR Chamber Judgment Case of S.A.S. v. France: Banning of burqas and niqabs legal?

Is the State allowed to criminalise the wearing of full veils in public spaces? To what extend must a religious Muslim minority adapt itself to a country’s Christian majority in certain occasions? What is the minimum requirement for people in a society to “live together”? How far does the freedom of religion go in Europe? In the recent Case of S.A.S. v. France, the European Court on Human Rights (ECHR) tried to find answers to those questions.

The case

In 2010, France banned the wearing of niqabs and burqas and other clothing that conceal one’s face in public places. The lawfollowed a resolution of the National Assembly, which considered that the wearing of the full veil in public is “incompatible with the values of the [French] Republic”. The lawmakers saw the covering of the face as contrary to the “ideal of fraternity” and the “minimum requirement of civility” that is “necessary for social interaction”. A violation of the law is punishable by a fine, at the rate applying to second-class petty offences up to 150 euros, and the obligation to follow a citizenship course.

A devout Sunni Muslim woman, born in Pakistan with French citizenship and living in France, who requested the Court to have her name disclosed, turned against the law.She emphasised that she was wearing the niqab with her free will in accordance with her religious faith, culture and personal convictions.She also did not wear the niqab in public places at all times and was willing to show her face for identity checks and security reasons at banks and airports, but wanted to be able to wear the niqab when she chose to do so to feel at inner peace with herself.

Complaints and arguments

The application to the European Court of Human Rights was related to the prohibition of degrading treatment (Article 3), the right to respect for private life (Article 8), the freedom of religion (Article 9), the freedom of expression (Article 10) and the freedom of association (Article 11) of the European Convention on Human Rights, taken separately and together with prohibition of discrimination (Article 14).

The applicant’s lawyers argued that the ban could not be based on the legitimate aim of “public safety” as it was not a measure intended to address specific safety concerns in places of high risk such as airports, but a blanket ban applying to almost all public places. The ban could also not be justified with the aim of “respect for human dignity”, as it would foster “stereotyping” and “chauvinistic logic” that women who wore veils were “effaced”. The applicant’s lawyers emphasised the cultural practices of religious minorities in France and stressed that it was a profoundly voluntarily and emancipated choice of their client to wear the full veil. They underlined that it was not for the State to determine religious beliefs and argued that the ban actually discourages Muslim women from socialising.

The French Government responded that the effect of concealing one’s face in public places is to break the social tie and to manifest a refusal of the principle of “living together” (“vivre ensemble”). It reasoned that the face plays a “significant role in human interaction” and said that women who wear the niqab or burqa are effectivly “effaced” from the public space. The wearing of the burqa or niqab was “hardly compatible with the affirmation of a social existence”. As regards the necessity and proportionality, the Government argued that the ban followed the wide democratic consultations, including the majority of civil society. It pointed out that the Court afforded States a wide margin of appreciation when it came to striking a balance between competing private and public interests. The Government observed that the practice of wearing the full-face veil was “quite uncommon in France” and “criticized on many occasions by high-profile Muslims”.

The judgment

The majority of judges held that the ban does not violate the European Convention on Human Rights. On one side, the Court took the view that France cannot invoke “gender equality” in order to ban a practice that is actually defended by women, such as the applicant. The Court also showed itself concerned about Islamophobic remarks that marked the debate preceding the adoption of the law and observed that the law risks contributing to the consolidation of the stereotypes. The judges highlighted that the wearing of the full-face veil “shocked the majority of the French population”, but acknowledged that it is an “expression of a cultural identity” which eventually contributes to the pluralism, being “inherent in democracy”. On the other side, the Court underscored that the freedom of religion does not protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one’s religion or beliefs. Limitations might be necessary in order to reconcile the interests of the various groups. The State has the right to “organize” conducive public order, religious harmony and tolerance in a democratic society. As in its prior jurisdiction, the Court sees this “constant search for a balance” between the fundamental rights of each individual as the foundation of a “democratic society”.

The ECHR concluded that the national authorities are, in the present case, “better placed than an international court to evaluate local needs and conditions” to define this equilibrium in the French society. The Court noted that there is little common ground and no consensus amongst the member States of the Council of Europe on the matter; except for Belgium, no other member State of the Council of Europe had opted for a ban. It stressed that States have a wide “margin of appreciation” regarding questions concerning the relationship between State and religion, posing a “complex dilemma” of public and private interests. Lastly, the judges established that the question whether or not it should be permitted to wear the full-face veil in public places constitutes a “choice of society”.

Dissenting opinion

Judge Angelika Nussberger (Germany) and Judge Helena Jäderblom (Sweden) contested in their dissenting opinion that justifying the ban with the aim of better “living together” was too “far-fetched and vague”. They stressed that the right to respect for private life also comprises the right not to communicate and not to enter into contact with others in public places, in other words, “the right to be an outsider”. In their view, human interaction is possible even if the full face is hidden and socialisation works even “without necessarily looking into each other’s eyes”. They agreed with the applicant that the French legislature has established “selective pluralism” and “restricted tolerance” with the ban. They concluded that it is the very task of the Court to protect religious minorities against disproportionate interferences. Both judges challenged that the aim of the Government to discourage the relatively recent phenomenon of the use of full-face veils could have been accomplished by less restrictive measures, for example, through awareness-raising and education. In Judge Nussberger’s and Judge Jäderblom’s opinion, the general ban of full veils in public spaces is disproportionate.

Conclusion

That States and societies have certain customs and rules for how to dress “appropriately” according to their cultures and traditions is not unusual. The UK Foreign and Commonwealth Office, for instance, informs visitors about the dress code in Saudi Arabia that: “Women should observe the strict Saudi dress code and wear conservative and loose-fitting clothes, including a full-length cloak (abaya) and a keep a scarf with them in case they are asked to cover their head by the Hai‟a, commonly known as Muttawa (Promotion of Virtue and Prevention of Vice/Religious Police). Men should not wear shorts in public or go without a shirt. Visitors should always seek guidance concerning acceptable clothing.” Regarding the local costumes and laws in Iran, the Commonwealth Office clarifies: “In any public place women must cover their heads with a headscarf, wear trousers (or a floor length skirt), and a long-sleeved tunic or coat that reaches to mid-thigh or knee. Men should wear long trousers and long-sleeve shirts.” For Pakistan, the birthplace of the ECHR applicant, it is stressed: “You should dress modestly at all times. Men and women should cover their shoulders and legs when in public. Women should cover their heads when entering mosques or other holy places, and when travelling in rural areas.” In the European context, however, restrictions on clothing in public leaves one perplexed.

Missed opportunity to counter Islamophobia

The ECHR reiterated that “pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’”. In the Case of S.A.S. v. France,those words only appear as a lip service of the Court to the values of the Convention. Would a truly tolerant and broadminded society not rather be capable of accepting something “alien” without bothering too much or feeling the urge to impose restrictions? Indeed, broadmindedness does not mean open or limitless, but implies that a society can bear with a minority of outsiders. Integration and dialogue between cultures and religious works through inclusion not through exclusion. This premise certainly goes for all sides, also for those who like to stay isolated. Whether the criminalisation of wearing a piece of cloth covering ones face can really achieve the aim of “living together” is doubtful, as bans tend to have the notion of deepening divides more than they bridge them. The prohibition of full veils is supposedly not about suppressing religious extremism or regulating social preference when and how to interact with other members of the society, but the ECHR decision leaves a bitter aftertaste in times of growing Islamophobia in Europe. The far-right French Front National (FN) leader, Marine Le Pen, recently announced that school cafeterias would no longer serve non-pork substitution meals to children living in towns won by FN candidates, based on the argument that “there is no reason for religion to enter the public sphere.” In Germany, right-wing organisations have been increasing anti-Islam rhetoric and are finding a receptive audience, which has caused debate about new hate crime legislation. A recently published study of the Teeside University showed that more than half of Islamophobic attacks in the UK are committed against women, who are typically targeted because they are wearing clothing associated with Islam. In Switzerland, the “construction of minarets” remains “prohibited” by the constitution (Article 72 para. 3); which – ironically – the then French Foreign Minister Bernard Kouchner at the time chastised as an act of “religious oppression” and an “expression of intolerance.”

The margin of appreciation trap

On a strictly technical level, the decision follows ECHR jurisprudence on religious symbols and clothing in public. Within the ECHR human rights regime, States enjoy broad autonomy to define and fine-tune secularism, which on some occasions has effectively led to an “overprotection” of the religious majority in a country. Commentators to S.A.S. v. France have claimed that the decision is a “distinct departure” from the ECHR’s jurisprudence in other cases concerning the rights of Muslim women to wear religious attire. Some have said that the judgment gave France an “unexpected” wide margin of appreciation. It was commented that the aim of “living together” has been a “vague concept”, which could lead to “bans on anything that makes the majority feel uncomfortable”.

However, first, the acceptance of a legitimate aim for the justification of human rights restrictions has barely been a problem in any prior ECHR jurisprudence, being rightly criticised as a “rhetorical and artificial assertion”. Second, nearly all recent cases in protest against the banning of veils in different public places have been either dismissed as inadmissible or the Court has negated a violation of the Convention, mostly with the reference to the wide margin of appreciation of States (see Table 1 below). This practice can be criticised but not ignored. The Court has coherently reasoned that the lack of a core European consensus on how to treat the wearing of religious symbols justifies the actions of the State authorities. Consensus can narrow down the margin of appreciation, but the ongoing debate about the burqa and niqab ban (e.g. Norway, Austria, Germany) bears witness of the fact that a common ground on whether or not full veils shall be banned in public has not been reached yet. Indeed, the Parliamentary Assembly of the Council of Europe has called in 2010 on member states “not to establish a general ban of full veiling or other religious or special clothing”, but its advocacy call could not stop Belgium from enacting a ban the year later.

Lastly, there will be always complaints that the ECHR is either too advocacy driven and acting as a legislature or too weak in challenging State parties’ for the sake of human rights. In the Case of S.A.S. v. France more advocacy for a tolerant Europe could have been wished for. The judgment of the ECHR is legally valid but regarding the spirit of the Convention unsound. It is difficult not to see the French ban of covering ones face in public as a targeted stigmatisation of a particular Muslim group as a consequence of Islamophobic views, as no other group is effectively affected by it but those who wear the burqa or niqab. The decision S.A.S. v. France should be a wakeup call for the whole of Europe that more openness to other ways of life is needed, so that all people in Europe can truly “live together”. This ideal requires dialogue outside the court room, masked or unmasked, which all sides must face even more now.

Table 1. ECHR jurisprudence on religious symbols and clothing

The views expressed herein are those of the author and do not necessarily reflect the views of the the organisations with which the author is affiliated.