European Court upholds France's burqa ban

S.A.S v France (European Court of Human Rights, Grand Chamber, Application No 43835/11, 1 July 2014)

On 1 July 2014, the European Court of Human Rights held that a French law prohibiting the concealment of one's face in public places does not breach the European Convention for the Protection of Human Rights and Fundamental Freedoms. Whilst it was held that the prohibition impinges on the freedom of thought, conscience and religion, and the right to respect for private and family life, the government was entitled to impose the prohibition on the grounds that the ban protects the rights and freedoms of others.

Facts

The law

In July 2010, a law was passed in France prohibiting anyone from wearing clothing designed to conceal their face in public places. The prohibition does not apply to certain clothing, such as clothing worn for sports, festivities or health or occupational reasons. Breaches attract minor penalties.

Both houses of Parliament overwhelmingly supported the law. Other bodies were also in support, including the Parliamentary 'Delegation on the rights of women and equal opportunities'.

The explanatory memorandum stated, inter alia, that concealment of the face is 'incompatible with the fundamental requirements of "living together" in French society', 'contravenes the principle of respect for the dignity of the person', is a 'public manifestation of a conspicuous denial of equality between men and women' and could 'represent a danger for public safety in certain situations'.

The application

The applicant, a French Muslim woman, claimed the law violated the following provisions of the Convention: Article 8, the right to respect for private and family life; Article 9, the freedom of thought, conscience and religion; Article 10, freedom of expression; Article 3, the prohibition of torture; Article 11, freedom of assembly and association; Article 14, which provides the Convention's rights must apply without discrimination.

She explained she covers her face in public and private in accordance with her religious faith, culture and personal convictions.

Decision

Did the ban interfere with rights and freedoms?

The Court held that, because the applicant must either comply with the ban and refrain from dressing in accordance with her approach to religion, or refuse to comply and face criminal sanctions, the ban interferes with her freedom of religion.

The Court also stated that the ban restricts the choices a person can make about their appearance and therefore relates to the expression of a person's personality. On that basis, it also interferes with the right to respect for private life.

The Court held that Article 14 was not violated, and dismissed the application insofar as it related to articles 3 and 11 of the Convention.

Was the ban permissible?

The Court considered whether the ban, though limiting the freedom of religion and right to respect for private life, was nevertheless permissible under the Convention. The Convention permits limitations on these rights if the limitation is prescribed by law, and is necessary in a democratic society for one of a number of 'legitimate aims'. These aims include public safety and protecting the rights and freedoms of others.

The limitation in question was clearly prescribed by law.

Public safety

The Court did not accept that the ban was necessary in a democratic society in the interests of public safety. Public safety could be attained by imposing a mere requirement for people to show their face where circumstances so require.

Protecting the rights and freedoms of others

France argued that the ban aimed to protect the rights and freedoms of others as it aimed to ensure respect for gender equality, human dignity and the 'minimum requirements of life in society'.

The Court rejected the gender equality argument, primarily because some women defend the practice of facial concealment. It also rejected the human dignity argument for various reasons, including because the full-face veil is an expression of cultural identity, and thus contributes to the pluralism that is inherent in democracy.

Conversely, the Court accepted that respect for the 'minimum requirements of life in society', and the 'living together' aim set out in the explanatory memorandum, can be linked to the 'legitimate aim' of protecting the rights and freedoms of others. Accordingly, the prohibition can be justified on this basis.

The Court also held that the ban is proportionate to that aim given the ban applies only to clothing that covers the face and is not expressly based on the religious connotation of clothing, and the sanctions for non-compliance are light. This was despite:

• the small number of women in France who wear a full-face veil;
• the ban having a significant adverse effect on women like the applicant; and
• the risk that States, in considering such a ban, exacerbate stereotypes imposed on certain groups and encourage intolerance.

The Court emphasised that it is open to a State to 'secure the conditions whereby individuals can live together in diversity', and stressed its duty to 'exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question'.

Dissenting opinion

Judges Nussberger and Jäderblom concluded that the blanket prohibition violated Articles 8 and 9 of the Convention. They expressed doubt that the blanket prohibition on the full-face veil pursues a legitimate aim because the concept of 'living together' seems 'far-fetched and vague' and does not fall squarely within any of the rights and freedoms guaranteed by the Convention. They also held that, '[i]n any event, such a far-reaching prohibition…is not necessary in a democratic society'.

Commentary

The relevant rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) are very similar to those in the Convention (see sections 8, 10, 13, 14 and 16). Accordingly, the Court's comments may be useful in interpreting the Charter rights.

However, the Court's reasoning regarding the permissible limitation of rights may have limited application, particularly where a limitation imposed by legislation passes through Parliament without near-unanimous support. This is for the following reasons.

• The 'limitation' provision in the Charter (see section 7) is worded differently to the limitation provisions in the Convention.
• It is difficult to reconcile a plain reading of the Convention's text (which required the full-face veil prohibition to be necessary in a democratic society for the protection of the rights and freedoms of others) with the Court's ultimate conclusion.
• The Court was influenced by its previous decisions. A Victorian court or body would not be influenced in the same way.
• The Court may have been influenced by the fact that the French prohibition received almost unanimous support by democratically-elected Parliamentarians (and, indeed, the Court expressed its reluctance to interfere with France's democratic decision-making processes).

Angela Gibbs is a Lawyer at Allens.