Case Watch: ECHR Says “Living Together” Justifies Ban on Full-Face Veils
By Maxim Ferschtman & Jonathan Birchall
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
The European Court of Human Rights has rejected a challenge to France’s controversial ban on Muslim women wearing full-face veils in public, despite acknowledging the ban’s disproportionate negative impact on the individuals concerned.
In its ruling on July 1 in S.A.S. v. France, the court cited instead France’s argument that the veil ban was necessary to ensure the concept of “living together,” a concept criticized in the dissenting opinion of the 21-judge bench as seeming “far-fetched and vague.”
The case was brought by a French Muslim woman—referred to by the Court as “S.A.S.” in order to protect her identity at her request—who stated that she would like to wear the veil in public but feared that she would be prosecuted if she did so.
The court accepted that the ban raised an issue with regard to the manifestation of one’s religion or beliefs, and as such represented a continuing interference with her rights under Article 8 (right to private life) and 9 (right to freedom of religion) under the European Rights Convention.
The court also rejected the two principal arguments advanced by the French government to justify the infringement on personal rights—that the ban was a necessary and proportionate response to threats to public safety and affronts to gender equality and human dignity, of both those who chose to wear it and those who do not. It concluded that given the impact on the rights of women, a blanket ban could only be proportionate if there was a general threat to public safety, and that this had not been demonstrated, since a veil could be removed when needed for identification purposes.
Instead, the court considered that the blanket ban on the wearing of particular religious clothing was justified under French law based on “respect for the minimum requirements of life in society,” or of “living together.” This justification has no prior basis in the court’s jurisprudence.
According to the court, wearing a veil undermined “living together,” as the face plays a significant role in social interaction. Individuals might not want to see in public practices or attitudes which would fundamentally call into question the possibility of open, interpersonal relationships, which, by virtue of an established consensus, formed an indispensable element of community life.
However, the two dissenting judges argued that “the very general concept of ‘living together’ does not fall directly under any of the rights and freedoms guaranteed within the [European] Convention. Even if it could arguably be regarded as touching upon several rights, such as the right to respect for private life (Article 8) and the right not to be discriminated against (Article 14), the concept seems far-fetched and vague.”
The court admitted that the blanket ban might still appear excessive, in view of the small number of women concerned, estimated at around 1,500. It noted that numerous international human rights bodies regarded the ban as disproportionate, that the debate leading to the ban was marked by Islamophobia, and that there was a risk that such a ban consolidated stereotypes and encouraged the expression of intolerance. It also observed that remarks that constituted a vehement attack on a religious or ethnic group were not protected by freedom of expression, and undermined the European Rights Convention values of tolerance, social peace, and non-discrimination.
However, the court considered that women could still wear non-face-covering clothing, such as headscarves, and that the €150 fine was not very much. It noted that France had scope to interpret the European rights convention, as the issue was a choice of society decided in a democratic process. The lack of common ground in Europe was also relevant. The ban was proportionate to the aim of preserving the conditions of “living together.”
The ruling is a blow to French women who wear the veil, such as those who participated in the Open Society Foundations September 2013 report, After the Ban: Experiences of 35 Women of the Full-Face Veil in France, which detailed the pervasive negative effects of the ban on their daily experiences and their families.
James A. Goldston, executive director of the Open Society Justice Initiative, noted in a statement that the ruling came at a time when hostility to ethnic and religious minorities is on the rise in many parts of Europe: “The court’s decision is an unfortunate missed opportunity to reaffirm the importance of equal treatment for all and the fundamental right to religious belief and expression. The majority has failed adequately to protect the rights of many women who wish to express themselves by what they wear.”
But this judgment is far from a ringing endorsement of the French ban; it does not mean that a similar ban in any European country is automatically approved.
In any future cases, the court will look at the specifics of each individual law, examining the justifications for the ban (such as public security, secularity), the evidence upon which the legislation was introduced, and the peculiar circumstances of each country (France is officially secular, so has more scope to ban any religious clothing on public buildings). Also relevant will be the motives that were behind the introduction of the new legislation, i.e., here the court noted that there were some clearly discriminatory elements in the debate around the ban.
For example, in Spain, a “burqa ban” in the city of Lleida was introduced in 2010 purely to protect public order; the Spanish Constitutional Court struck it down last year, and the European Court would have done the same. Similarly, in the UK there is a tradition of tolerance very different to France, and the courts in the UK would likely interpret the concept differently to the Strasbourg court.
Until April 2015, Maxim Ferschtman was senior legal adviser on equality and citizenship with the Open Society Justice Initiative.
Jonathan Birchall is lead communications officer for communications and publications, responsible for overseeing this area of work for the Open Society Justice Initiative.