Case Watch: Spanish Supreme Court Repeals City Burqa Ban
By Maxim Ferschtman & Cristina de la Serna
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.
The prohibition against wearing a full-face veil or burqa is a controversial issue all over Europe. In some countries—France and Belgium are two—there are national laws banning the use of this kind of veil. In Spain it’s still a local issue. These prohibitions have been approved, for the moment, in six municipalities. Now, a recent judgment of the Spanish Supreme Court has repealed the prohibition against wearing burqa in public spaces in the Catalonian city of Lleida. The judgment could provide a precedent to prevent broader bans at both the local and the national level.
Lleida was the first city where these kinds of regulations were adopted. In 2010 the city council approved a reform to the Municipal Ordinance on Civility and Coexistence, which prohibited the wearing in public areas of “accessories that impede or complicate the identification and the visual communication,” including explicitly among these “accessories” the “full veils.”
The Asociación Watani para la Libertad y la Justicia, a Muslim advocacy group, challenged the ordinance before the Supreme Tribunal of Catalonia, alleging that the ban violated the right to freedom of religion. The appeal was rejected in the first instance, with the tribunal ruling that these restrictions are necessary in order to maintain the public order and to assure the gender equality between men and women. The tribunal also quoted the judgments of the European Court of Human Rights in the cases Leyla Sahin v. Turkey (2004) and Kervanci v. France (2008), which stated that the prohibition of the hiyab (or hair veils) in schools in France and in universities in Turkey do not violate the freedom of religion.
In a 56-page ruling [pdf], made public on February 28, 2013, the Supreme Court (Tribunal Supremo) overturned the decision of the Supreme Tribunal of Catalonia and thus repealed the municipal regulations in Lleida. The Supreme Court focused its argumentation on the lack of competences of the city council to regulate or limit the freedom of religion. According to Spain’s Constitution, the exercise of all the fundamental rights can only be regulated by law (i.e., approved by the National Parliament). The court’s statement underscores that this decision refers only to the Ordinance of Lleida and thus is subject to appeal. But the judgment also contains interesting findings on the general prohibition of full-face veils and freedom of religion, which could apply to other municipal regulations and even a potential national prohibition on wearing the burqa.
According to the Supreme Court, the jurisprudence of the European Court of Human Rights would not apply to this type of prohibitions in Spain as (i) the national Constitution—in contrast with those of Turkey and France—do not include the principle of laicism; and (ii) the ECtHR precedents refer to a prohibition of hair veils in specific places (schools or universities), and not to a broader or more general prohibition of wearing burka in all public spaces.
The Supreme Court referred to other international human rights standards, such as the UN Human Rights Committee decision in a case against Uzbekistan (2004), which established that the prohibition of the use of religious garment can violate the freedom of religion, as recognized by the International Covenant on Civil and Political Rights. It mentions as well the Council of Europe Parliamentary Assembly Recommendation 1927 (2010), which called on member states “not to establish a general ban of full veiling or other religious or special clothing, but to protect women from all physical and psychological duress as well as to protect their free choice to wear religious or special clothing and ensure equal opportunities for Muslim women to participate in public life and pursue education and professional activities.”
The Supreme Court also asserted that the argument used by both the Catalonian Tribunal and the city council of Lleida with regards to the security and public order problems caused by the use of the burqa lacks a “convincing demonstration.” Indeed, according to the Spanish Constitution, fundamental rights—including the freedom of religion—are among the most important elements of the public order. In addition, the Law on Public Security allows police officers to conduct ID checks when needed in order to maintain the public order, making the local burqa ban unnecessary.
This judgment also countered the view of the lower tribunal on the conflict between the use of the burqa and respect for gender equality. According to the Supreme Court, in a democratic society such as Spain, in which freedoms and fundamental rights are guaranteed, it cannot be deduced that all the women wearing full-face veils are obliged by third persons to do so. For this reason, the general ban violates the right to freedom of religion, as it is an illegitimate intervention of the public authorities into the private beliefs of individuals. In addition, these types of regulations prevent a proper integration of those women in public spaces, as it forces them to stay in their houses and thus does not eliminate gender discrimination.
The judgment is remarkable and arguably very progressive in the current European landscape. It compares favourably with a December 6, 2012, ruling by the Belgian Constitutional Court that the national ban on face coverings does not violate the right to freedom of religion, the right to freedom of expression, the right to private life, and the right to individual liberty, as well as the prohibition of discrimination, by reasoning that the ban does not apply to places of worship.
The Spanish Supreme Court addresses the key arguments that have been used by other governments in adopting bans on the full-face veil and does away with them in a clear and coherent manner.
First, it pierces the curtain of abstract arguments concerning public safety and security by simply looking at the facts, which show that public order and safety concerns are addressed sufficiently by regulations already in place. If police assert that there is a dangerous situation—meaning by a person covering his or her face—they are obviously entitled to ask the person to remove his/her cover and to identify himself or herself.
Second, the Supreme Court addresses the argument that a burqa prohibition would advance equality between men and women. The Spanish Supreme Court is the first tribunal at its level to acknowledge what has been asserted by full-face veil wearing women on many occasions—that the veil represents a deep inner conviction to lead what they see as a pious life. This is the clear finding of multiple reports, including “Unveiling the Truth,” a study conducted in France by Open Society’s At Home in Europe project.
The prohibition against full-face veils in public spaces is currently the subject of a case before the European Court of Human Rights in the S.A.S. v France case, in which the Open Society Justice Initiative has submitted a third party intervention. Even if France adheres to the principle of laicité, the arguments—relating to public order and security, to non-discrimination, to protection against violence against women, and to freedom of individual belief—remain the same. It would be encouraging to see the European Court lend its ear to the Spanish Supreme Court.
Until April 2015, Maxim Ferschtman was senior legal adviser on equality and citizenship with the Open Society Justice Initiative.
Cristina de la Serna is an Open Society Justice Initiative Resident Fellow, based in Spain.