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,
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 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
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.