Observatorio PSyD
The observatory says
26th of November 2014
Islam, Islamism, Islamophobia: Strasbourg and the French ban on the burqa
Fernando Arlettaz
Investigador del Laboratorio de Sociología Jurídica. Universidad de Zaragoza.
Miembro del SEIPAZ
On the 1st July 2014, the Grand Chamber of the European Court of Human Rights delivered its judgment about the French ban on the burqa (Case of S.A.S. v. France [GC], 01/07/2014). In a few words, the Court decided that the French law prohibiting the concealment of the face in public places (Law no. 2010-1192 of 11 October 2010) was not at odds with the European Convention on Human Rights.
This was not the first time that the high European Court addressed the issue. It had ruled on bans on the wearing of religious symbols in State schools, imposed on teaching staff (Dahlab v. Switzerland [dec.], 15/02/2001; Kurtulmu? v. Turkey [dec.], 24/01/2006) and on pupils and students (Leyla ?ahin v. Turkey [GC], 10/11/2005; Köse and Others v. Turkey [dec.], 24/01/2006; Kervanci v. France, 04/12/2008; Aktas v. France [dec.], 30/06/2009; Ranjit Singh v. France [dec.], 30/06/2009); on an obligation to remove clothing with a religious connotation in the context of a security check (Phull v. France [dec.], 11/01/2005; El Morsli v. France [dec.], 04/03/2008); and on an obligation to appear bareheaded on identity photos for use on official documents (Mann Singh v. France [dec.], 11/06/2007). No violation of freedom of religion had been found in any of these cases. The Court had also examined two applications in which individuals had complained about restrictions imposed by their employers on the possibility to wear a cross visibly around their necks (Eweida and Others v. United Kingdom, 15/01/2013), founding a violation of freedom of religion in one of the two applications.
The most similar case in the European case-law had been Ahmet Arslan and Others v. Turkey (23/02/2010) in which the Court had considered the punishment of a group of people wearing, near a mosque, certain religious clothing and had found a violation of freedom of religion. However, the ban under analysis in the French case is much more broadly worded than the Turkish one. The French ban includes the use of any clothing designed to conceal one’s face in any public place. Even if the law does not mention the religious motivation to conceal the face as a condition for the prohibition, it is clear that its aim is to discourage the use of 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).
The applicant in the present case was a French national born in Pakistan, of Sunni Muslim religion, who alleged that the ban violated her rights under the European Convention. The application was first assigned to one section of the Court, which relinquished jurisdiction in favour of the Grand Chamber.
Many third-parties intervened for or against the French law. On the one hand, the Belgian Government defended the legitimacy of the French ban (Belgium has a similar ban in its national law). On the other hand, many non-governmental organisations (Amnesty International, Article 19, Human Rights Centre of Ghent University, Liberty, Open Society Justice Initiative) observed that the right to wear clothing with a religious connotation was protected by the European Convention.
The Court considered in detail the allegations based on articles 8 (right to private life) and 9 (right to religious freedom), as well as on article 14 (principle of equality) in relation to both articles 8 and 9. The Court accepted that the ban constituted an interference with the exercise of the right to respect for private life. Also, in so far as the ban was criticised by individuals who complained that they were prevented from wearing in public places clothing that the practice of their religion required, the prohibition raised an issue with regard to the freedom to manifest one’s religion.
To be legitimate, any limitation of the rights enshrined in articles 8 and 9 must comply with three conditions: it must be “prescribed by law”, it must have a “legitimate aim”, and it must be “necessary in a democratic society”. In the case, the limitation was prescribed by law, so the first requirement was clearly satisfied.
France had argued that the Law pursued two legitimate aims: protection of “public safety” and “respect for the minimum set of values of an open and democratic society”. Whereas “public safety” is explicitly mentioned in articles 8 and 9 as a basis for the limitation of the rights, these articles do not refer to the second aim claimed by the French government. However, France had affirmed that the second aim was related to the “protection of rights and freedoms of others”, which does appear in articles 8 and 9.
The Court accepted that the prohibition pursued a “public safety” aim as the ban satisfied the need to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud. The Court also accepted that the law was directed to the “protection of rights and freedoms of others”, which was linked to the conditions for the respect for the minimum requirements of life in society. Faces play an important role in social interaction and individuals who are present in public places may not wish to see practices which would fundamentally call into question the possibility of open interpersonal relationships.
Notwithstanding the opinion of the Court, it must be said that the protection of the “living together” as a part of the “rights and freedoms of others” is a too vague description of a legal aim. It is doubtful that it could serve as a legitimate aim under the Convention. As the dissenting opinion of judges Nussberger and Jäderblom rightly pointed out, the very general concept of “living together” does not fall directly under any of the rights and freedoms guaranteed within the Convention. There is no right not to be shocked or provoked by different models of cultural or religious identity, even if they are very distant from the traditional French and European life-style. Furthermore, it can hardly be argued that an individual has a right to enter into contact with other people, in public places, against their will.
The most difficult point was, as usual, that of the necessity in a democratic society. Here again, the Court was too loose when considering the arguments of the State. Based on its case-law on the matter (especially Leyla ?ahin v. Turkey), the Court said that it was not possible to discern throughout Europe a uniform conception of the significance of religion in society and, as a consequence, the extent and form of the rules in this sphere had to be left up to a point to the State concerned (this is known as the doctrine of the margin of appreciation).
The Court rightly said that a blanket ban on the wearing of clothing designed to conceal the face could not be regarded as a measure proportionate to the aim of the protection of “public safety”. It would have been proportionate only if the obligation to show the face and to identify oneself had been imposed in circumstances of a particular risk for the safety of persons and property, or where particular circumstances entailed a suspicion of identity fraud.
However, the Court found that the measure was necessary, in a democratic society, to ensure the observance of the minimum requirements of life in society as part of the “protection of the rights and freedoms of others”. According to the Court, a State may find it essential to give particular weight to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places.
The Court admitted that the ban has a significant negative impact on the situation of women who, like the applicant, had chosen to wear the full-face veil for reasons related to their beliefs. It also acknowledged that the law, together with certain debates surrounding its drafting, could have upset part of the Muslim community. Even more: it admitted that certain Islamophobic remarks had marked the debate which had preceded the adoption of the law.
Nonetheless, the Court found the limitation proportionate to the necessities of a democratic society, having into account that France had a wide margin of appreciation in the case. First, because it does not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face. Second, because the sanctions provided for by the law’s drafters are among the lightest that could be envisaged. Third, because the respondent 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.
The doctrine of the margin of appreciation is the easy way generally used by the Court to avoid declaring that a State has violated the Convention. This doctrine is usually mentioned in cases about State and religion. However, as the dissenting opinion of judges Nussberger and Jäderblom indicated, this case cannot be plainly equated to those concerning the relationship between State and religion and, in any case, the margin of appreciation should not be deemed to be as large as the majority considered. Contrary to the majority opinion, it does exist a European consensus on the matter: 45 out of 47 member States of the Council of Europe have not considered it necessary to legislate in this area. Furthermore, the Government never explained why it would have been impossible to apply less restrictive measures, instead of criminalising the concealment of the face in all public places.
The judgement of the Grand Chamber has shown the position of the European Court of Human Rights on the very controversial issue of the public use of clothing with a religious meaning (in particular, by members of the Muslim community). Once again, the Court used the idea of margin of appreciation to avoid seriously considering the matter. The answer of the Grand Chamber has been weak, and has given too much weight to the interests of the State over individual rights.
Moreover, the judgment has contradicted Resolution 1743 (2010) of the Parliamentary Assembly of the Council of Europe on Islam, Islamism and Islamophobia. The Resolution explicitly states that “a general prohibition of wearing the burqa and the niqab would deny women who freely desire to do so their right to cover their face” (par. 16) and that “a general prohibition might have the adverse effect of generating family and community pressure on Muslim women to stay at home and confine themselves to contacts with other women” (par. 17).
November 26, 2014
This was not the first time that the high European Court addressed the issue. It had ruled on bans on the wearing of religious symbols in State schools, imposed on teaching staff (Dahlab v. Switzerland [dec.], 15/02/2001; Kurtulmu? v. Turkey [dec.], 24/01/2006) and on pupils and students (Leyla ?ahin v. Turkey [GC], 10/11/2005; Köse and Others v. Turkey [dec.], 24/01/2006; Kervanci v. France, 04/12/2008; Aktas v. France [dec.], 30/06/2009; Ranjit Singh v. France [dec.], 30/06/2009); on an obligation to remove clothing with a religious connotation in the context of a security check (Phull v. France [dec.], 11/01/2005; El Morsli v. France [dec.], 04/03/2008); and on an obligation to appear bareheaded on identity photos for use on official documents (Mann Singh v. France [dec.], 11/06/2007). No violation of freedom of religion had been found in any of these cases. The Court had also examined two applications in which individuals had complained about restrictions imposed by their employers on the possibility to wear a cross visibly around their necks (Eweida and Others v. United Kingdom, 15/01/2013), founding a violation of freedom of religion in one of the two applications.
The most similar case in the European case-law had been Ahmet Arslan and Others v. Turkey (23/02/2010) in which the Court had considered the punishment of a group of people wearing, near a mosque, certain religious clothing and had found a violation of freedom of religion. However, the ban under analysis in the French case is much more broadly worded than the Turkish one. The French ban includes the use of any clothing designed to conceal one’s face in any public place. Even if the law does not mention the religious motivation to conceal the face as a condition for the prohibition, it is clear that its aim is to discourage the use of 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).
The applicant in the present case was a French national born in Pakistan, of Sunni Muslim religion, who alleged that the ban violated her rights under the European Convention. The application was first assigned to one section of the Court, which relinquished jurisdiction in favour of the Grand Chamber.
Many third-parties intervened for or against the French law. On the one hand, the Belgian Government defended the legitimacy of the French ban (Belgium has a similar ban in its national law). On the other hand, many non-governmental organisations (Amnesty International, Article 19, Human Rights Centre of Ghent University, Liberty, Open Society Justice Initiative) observed that the right to wear clothing with a religious connotation was protected by the European Convention.
The Court considered in detail the allegations based on articles 8 (right to private life) and 9 (right to religious freedom), as well as on article 14 (principle of equality) in relation to both articles 8 and 9. The Court accepted that the ban constituted an interference with the exercise of the right to respect for private life. Also, in so far as the ban was criticised by individuals who complained that they were prevented from wearing in public places clothing that the practice of their religion required, the prohibition raised an issue with regard to the freedom to manifest one’s religion.
To be legitimate, any limitation of the rights enshrined in articles 8 and 9 must comply with three conditions: it must be “prescribed by law”, it must have a “legitimate aim”, and it must be “necessary in a democratic society”. In the case, the limitation was prescribed by law, so the first requirement was clearly satisfied.
France had argued that the Law pursued two legitimate aims: protection of “public safety” and “respect for the minimum set of values of an open and democratic society”. Whereas “public safety” is explicitly mentioned in articles 8 and 9 as a basis for the limitation of the rights, these articles do not refer to the second aim claimed by the French government. However, France had affirmed that the second aim was related to the “protection of rights and freedoms of others”, which does appear in articles 8 and 9.
The Court accepted that the prohibition pursued a “public safety” aim as the ban satisfied the need to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud. The Court also accepted that the law was directed to the “protection of rights and freedoms of others”, which was linked to the conditions for the respect for the minimum requirements of life in society. Faces play an important role in social interaction and individuals who are present in public places may not wish to see practices which would fundamentally call into question the possibility of open interpersonal relationships.
Notwithstanding the opinion of the Court, it must be said that the protection of the “living together” as a part of the “rights and freedoms of others” is a too vague description of a legal aim. It is doubtful that it could serve as a legitimate aim under the Convention. As the dissenting opinion of judges Nussberger and Jäderblom rightly pointed out, the very general concept of “living together” does not fall directly under any of the rights and freedoms guaranteed within the Convention. There is no right not to be shocked or provoked by different models of cultural or religious identity, even if they are very distant from the traditional French and European life-style. Furthermore, it can hardly be argued that an individual has a right to enter into contact with other people, in public places, against their will.
The most difficult point was, as usual, that of the necessity in a democratic society. Here again, the Court was too loose when considering the arguments of the State. Based on its case-law on the matter (especially Leyla ?ahin v. Turkey), the Court said that it was not possible to discern throughout Europe a uniform conception of the significance of religion in society and, as a consequence, the extent and form of the rules in this sphere had to be left up to a point to the State concerned (this is known as the doctrine of the margin of appreciation).
The Court rightly said that a blanket ban on the wearing of clothing designed to conceal the face could not be regarded as a measure proportionate to the aim of the protection of “public safety”. It would have been proportionate only if the obligation to show the face and to identify oneself had been imposed in circumstances of a particular risk for the safety of persons and property, or where particular circumstances entailed a suspicion of identity fraud.
However, the Court found that the measure was necessary, in a democratic society, to ensure the observance of the minimum requirements of life in society as part of the “protection of the rights and freedoms of others”. According to the Court, a State may find it essential to give particular weight to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places.
The Court admitted that the ban has a significant negative impact on the situation of women who, like the applicant, had chosen to wear the full-face veil for reasons related to their beliefs. It also acknowledged that the law, together with certain debates surrounding its drafting, could have upset part of the Muslim community. Even more: it admitted that certain Islamophobic remarks had marked the debate which had preceded the adoption of the law.
Nonetheless, the Court found the limitation proportionate to the necessities of a democratic society, having into account that France had a wide margin of appreciation in the case. First, because it does not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face. Second, because the sanctions provided for by the law’s drafters are among the lightest that could be envisaged. Third, because the respondent 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.
The doctrine of the margin of appreciation is the easy way generally used by the Court to avoid declaring that a State has violated the Convention. This doctrine is usually mentioned in cases about State and religion. However, as the dissenting opinion of judges Nussberger and Jäderblom indicated, this case cannot be plainly equated to those concerning the relationship between State and religion and, in any case, the margin of appreciation should not be deemed to be as large as the majority considered. Contrary to the majority opinion, it does exist a European consensus on the matter: 45 out of 47 member States of the Council of Europe have not considered it necessary to legislate in this area. Furthermore, the Government never explained why it would have been impossible to apply less restrictive measures, instead of criminalising the concealment of the face in all public places.
The judgement of the Grand Chamber has shown the position of the European Court of Human Rights on the very controversial issue of the public use of clothing with a religious meaning (in particular, by members of the Muslim community). Once again, the Court used the idea of margin of appreciation to avoid seriously considering the matter. The answer of the Grand Chamber has been weak, and has given too much weight to the interests of the State over individual rights.
Moreover, the judgment has contradicted Resolution 1743 (2010) of the Parliamentary Assembly of the Council of Europe on Islam, Islamism and Islamophobia. The Resolution explicitly states that “a general prohibition of wearing the burqa and the niqab would deny women who freely desire to do so their right to cover their face” (par. 16) and that “a general prohibition might have the adverse effect of generating family and community pressure on Muslim women to stay at home and confine themselves to contacts with other women” (par. 17).
November 26, 2014
f._arlettaz_26_11_2014_ingles.pdf
