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Strasbourg upholds ban on face-veil in France

11 July 2014

reuters

Eyes front: a woman wearing a niqab makes a phone call outside the courts ifn Meaux, Paris, in 2011

Eyes front: a woman wearing a niqab makes a phone call outside the courts ifn Meaux, Paris, in 2011

THE ban in France on wearing "clothing that is designed to conceal the face" in public places is not a violation of human rights, the Grand Chamber of the Human Rights Court in Strasbourg ruled by a majority of 15 votes to two.

It held that the ban is no more than is necessary in a democratic society to protect the rights and freedoms of others. The court also held that the ban does not violate either the right to respect for private life, guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or the freedom to manifest one's religious beliefs, guaranteed by Article 9.

The complaint against the French Republic was brought by "S.A.S.", a French national born in Pakistan. She said that she was a devout Muslim, and wore the burqa (a full body covering including a mesh over the face) and the niqab (a full-face veil leaving an opening only for the eyes) in accordance with her faith, culture, and convictions.

She was content not to wear the niqab at all times in public places, she said, but wished to be able to wear it when she chose to do so.

The ban began when a commission was appointed by the French National Assembly to report on "the wearing of the full-face veil on national territory".

In January 2010, it reported that the full-face veil was a recent phenomenon in France, and almost no women wore it before 2000. By the end of 2009, about 1900 women wore it. The report says that the wearing of such clothing existed before the advent of Islam, and did not have the nature of a religious precept.

The report was critical of the situation in the UK, where it pointed to a sectarian trend driven by radical and fundamental Muslim groups. These groups, the report said, were taking advantage of a legal system that was protective of individual rights and freedoms in order to obtain recognition of rights that were specifically applicable to those of the Muslim faith or origin.

The report criticised "a practice at odds with the values of the Republic". After further consultation the French ban became law in October 2010, and came into force in April 2011.

In June 2011, Belgium passed a law "to prohibit the wearing of any clothing entirely or substantially concealing the face", and the Belgian Constitutional Court had found it compatible with the right to freedom of thought, conscience, and religion. A ban on face concealment in public had been, or was being discussed in several other European countries, including Italy, Switzerland, and the Netherlands.

The Belgian government appeared as an intervener in the case. Certain non-governmental organisations, including Amnesty International, the Human Rights Centre of Ghent University, and the Open Society Justice Initiative were also interveners. They submitted written comments opposing the ban.

"S.A.S." said that the ban violated Articles 8 and 9, and also generated discrimination to the detriment of Muslim women. She also said that the exception provided by law, according to which the ban did not apply to clothing worn in the context of "festivities or artistic or traditional events", was discriminatory in that it created an advantage for the Christian majority, who could conceal their faces, for instance, at religious processions.

The French government argued that, although the ban could be seen as a "limitation" within Article 9, it pursued legitimate aims that were necessary in a democratic society: to ensure public safety by identifying individuals, to combat identity fraud, and to protect the rights and freedoms of others by ensuring "respect for the minimum set of values of an open and democratic society".

It submitted that the face played a significant part in human interaction by expressing the existence of the individual as a unique person, and reflecting a shared humanity and otherness. The effect of concealing one's face in public places, it argued, was to break the social tie, and to manifest a refusal of the principle of living together ("le vivre ensemble").

The Belgian government said that the wearing of the full-face veil was not required by the Qur'an, but corresponded to a minority custom from the Arabian peninsular. It said that the French and Belgian laws were not discriminatory, because the ban applied to any person who wore items concealing the face in public, whether man or woman, and whether for a religious or any other reason.

The Strasbourg court decided that, while the scope of the ban was broad, because it applied to all places accessible to the public (except for places of worship), it did not affect the freedom to wear in public any garment or item of clothing. It was significant that the ban was not expressly based on the religious connotation of the clothing, but solely on the fact that it concealed the face.

Although criminal sanctions were attached to the ban, the sanctions were among the lightest that could be envisaged, consisting of a fine at the rate applying to second-class petty offences (currently a maximum of €150), with the possibility for the court to impose in addition to, or instead of, the fine, an obligation to follow a citizenship course.

The ban was a question of responding to a practice that the State deemed incompatible in French society with the ground-rules of social communication, and, more broadly, the requirements of "living together", the court said.

From that perspective, the State was seeking to protect a principle of interaction between individuals, which, in its view, was essential for the expression not only of pluralism, but also of tolerance and broadmindedness, without which there was no democratic society. The question whether the full-face veil should be permitted in public constituted a choice of society, the court said.

In matters of general policy on which opinions within a democratic society might reasonably differ widely, the court said, the part played by the domestic policy-maker should be given special weight. In all likelihood, the question of wearing the full-face veil in public was not an issue in certain member states where the practice was uncommon.

It could thus be said that, in Europe, there was no consensus about whether there should be a blanket ban on wearing the full-face veil in public.

Consequently, having regard to the breadth of the margin of appreciation afforded to the French State in the present case, the court found that the ban imposed by French law could be regarded as proportionate to the aim pursued: namely, the preservation of the conditions of "living together" as an element of the "protection of the rights and freedoms of others".

The ban could thus be regarded as "necessary in a democratic society" in respect of both Articles 8 and 9 of the Convention, and there had been no violation of either article.

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