European Court of Human Rights Upholds France’s Ban on the Full-Face Veil

On July 13, 2010 and September 14, 2010, respectively, the French National Assembly and Senate passed a law banning the wearing of “clothing designed to conceal the face” in public areas.  The law provided for criminal penalties including a fine of up to 150 euros and a citizenship course in the case of violations.[1]  Exceptions were permitted where allowed by legislation for health or occupational reasons, as well as in the context of athletic, artistic, or traditional events, and festivals.[2] The law was declared constitutional by the French Constitutional Court on October 7, 2010 and entered into force on April 11, 2011. Similar bans were enacted by legislation in Belgium in 2011, enacted through municipal ordinance in Spain (but subsequently annulled by the Supreme Court), and contemplated in the Netherlands, but rejected by the Council of State.

An application challenging the French measure was lodged with the European Court of Human Rights (the Court) on the day the law came into effect. The applicant, a French national, alleged that the law violated her rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention),[3] specifically Articles 3 (torture, inhuman or degrading treatment), 8 (right to private life), 9 (freedom to manifest religion), 10 (freedom of expression), 11 (freedom of association), and 14 (enjoyment of the rights and freedoms of the Convention without discrimination). Hearings took place at the Court in November 2013 and a number of third parties submitted written comments. On July 1, 2014, the Grand Chamber of the Court issued its judgment, upholding the French law as a legitimate and proportionate measure designed to protect “respect for the minimum requirements of life in society,” “the protection of the rights and freedoms of others,” and the principle of “living together.”[4] The Court ruled that the French law did not violate Articles 8, 9, 10, or 14 of the Convention and dismissed the remaining claims as inadmissible. Judges Nussberger and Jäderblom dissented.

The Judgment

The Court found that the ban interfered with Article 8 (right to private life) and was an infringement on Article 9 (freedom to manifest one’s religion).[5] Noting that the Convention mechanism is “fundamentally subsidiary” to national authorities with democratic legitimacy and local insight, the Court limited its role to ensuring that the measure was justifiable and proportionate to a legitimate aim.[6]

The French government argued that the law “pursued two legitimate aims: public safety and ‘respect for the minimum set of values of an open and democratic society.’” [7] It identified these minimum values as “equality between men and women, respect for human dignity and respect for the minimum requirements of life in society”[8] and connected this aim to its obligation to protect “the rights and freedoms of others.”[9] The Court was unconvinced that notions of “gender equality” and “human dignity” could justify a blanket ban, but found that “respect for the minimum requirements of life in society” and the principle of “living together” could be legitimate aims towards protecting “the rights and freedoms of others” even though these were not explicitly stated in Articles 8 and 9 of the Convention and the concept of living together is yet to be fully articulated.[10]

The Court agreed that concealing the face was tantamount to a barrier against others, based on the importance of the face in social interaction, and would breach “the right of others to live in a space of socialization which makes living together easier.”[11] Acknowledging that Article 9 did not protect every religiously motivated act, [12] the Court ruled that limitations to the right to manifest one’s religion could be acceptable. Looking to its own jurisprudence on limitations to religious expression, the Court opined that the present case was unique because the religious clothing in question completely concealed the face. As such, even though the Court found the ban to be disproportionate with respect to the aim of protecting public safety because no threat was shown to exist, it accepted that the state might see voluntary concealment of the face as having a detrimental effect on common social interaction. The Court decided that a ban was within the powers of the state to ensure the conditions of “living together.”[13]

The Court further underscored that the ban did not specifically limit religious expression, only the concealment of the face, and even though it would negatively impact a group of women[14] who would have to choose between removing the veil, traumatic criminal prosecution, or isolation from society, sanctions for conviction were light.[15] Furthermore, the ban was justifiable: even as it limited one aspect of pluralism by hindering a specific form of religious expression for one group, it advanced a different aspect of pluralism, tolerance and broad-mindedness, by protecting the elements necessary for continued social discourse and the requirements of “living together.” Recognizing the need to balance multiple conflicting local interests,[16] and noting that the French government had arrived at a measure through democratic process, [17] the Court restrained its own review and found that France had to be given a wide margin of appreciation in legislating the matter, especially because there was no European consensus on the issue.[18] The Court therefore found that the French law was proportionate with respect to the aim pursued and there was no discrimination under Article 14 as the measure, though it had a negative impact on some women, had an objective and reasonable justification.

The Dissent

The dissent concluded that the ban was a violation of Articles 8 and 9 of the Convention and criticized the majority for privileging abstract principles over “concrete individual rights guaranteed by the Convention,”[19] questioning whether a blanket ban could pursue a legitimate aim or be necessary in a democratic society. The dissenting judges also challenged the concept of “living together” and disagreed that the state should be given a wide margin of appreciation in the instant case.[20]

The dissenters took issue with the majority’s finding that the French government had a legitimate aim in ensuring the principle of “living together” or that such an aim could be identified as a subset of the “rights and freedoms of others.” Noting that the Court’s own jurisprudence on the matter was unclear and that the generalized concept of “living together” was not explicitly connected to any of the rights and freedoms guaranteed by the Convention, the dissenting judges questioned the proportionality of the French measure. They challenged the majority’s finding that concealing the face made social exchange impossible, regardless of the importance of the face in social interaction,[21] and criticized the majority for not explaining how other acceptable forms of concealing the face such as hairstyles, motorcycle helmets, dark glasses, or hats differed from the veil in terms of their impact on social engagement.[22] They further stated that the same values of the Republic, including liberty, equality, fraternity, pluralism, broadmindedness, and tolerance could be used to justify the acceptance of a religious dress-code and noted that the French government did not explain why less restrictive measures such as education programs and awareness-raising were not adopted ahead of the blanket ban. In the dissenters’ view, the blanket ban could be seen as “a sign of selective pluralism and restricted tolerance” and that by banning the full-face veil, the French government was obscuring a point of social tension rather than encouraging tolerance among different groups.[23] Thus, the dissenters found the blanket ban to be disproportionate to its purported aim and irreconcilable with the “Convention’s restrictive catalogue of permissible grounds for interference with basic human rights.”[24]

The dissenters also disagreed on the “margin of appreciation” afforded to the French government by the majority,[25] noting that European consensus was in fact against a blanket ban, as forty-five out of forty-seven states had not enacted bans, despite discussions to do so. Similar consensus against a ban was also found in existing international treaty law, comparative law, international soft law, and amongst numerous NGOs and international human rights organizations.[26] The dissent emphasized that dress code is an intimate right linked to religion, culture and personal convictions, and that while it is important for the Court to take local conditions into account, it is still the Court’s obligation to “protect minorities against disproportionate interferences.”[27]

Finally, the dissenters examined the intent behind the French measure, i.e., “what is at the core of the wish to protect people against encounters with others wearing full-face veils,”[28] noting that while the majority identified veiling as a challenge to open, interpersonal relationships, Dutch proponents of a similar bill had identified it as a threat to their “subjective feeling of safety.”[29] The dissenters queried whether the subjective feelings against veiling were in fact a reaction to the philosophies ascribed to the practice of veiling such as subservience, dehumanization, violence, and the self-confining and effacing of women from public life.[30] Noting that there was no “right not to be shocked or provoked by different models of cultural or religious identity”[31] and no “right to enter into contact with other people, in public places, against their will,”[32] the dissent in effect found that the that the ban’s oppressive consequences to the women concerned outweighed the burden that it placed on the abstract aim of “living together” and in fact served to exclude the affected women from society.[33]

Conclusion

The Court’s decision has important legal and public policy implications. The Court’s acceptance of the concept of “living together” without a definition of its content may lead to interpretive problems in the future. The Court also gave a wide margin of appreciation to national governments to legislate on matters of social import, even where such legislation clearly places limitations on a small minority who may lack the political clout or numbers to have its interests fully represented. The likely public policy outcome is further legislation seeking to implement similar bans. Regardless of the outcome, the French measure and the subsequent legal proceedings at the European Court of Human Rights have identified a point of fissure within many states: how to integrate migrants and minorities with diverse cultural and religious practices, particularly where some practices may challenge deeply-held conceptions of the secular, democratic, pluralistic, and tolerant public sphere. 

About the Author: Uzma S. Burney, an ASIL member, is in private practice in Boston, Massachusetts.