London, 11 July 2014

On 1 July, the European Court of Human Rights (ECtHR) issued its judgment in S.A.S. v France, in which it considered a French law in force since 2011 which bans the concealment of one’s face in public. The applicant, a Muslim woman who sometimes wears a niqab or burqa in public, complained that the law violated her rights to respect for her private life, freedom of religion and freedom from discrimination, amongst others, under the European Convention on Human Rights and Fundamental Freedoms (ECHR). In a controversial and unwelcome decision, the Court found no violation of Convention rights, holding that the restriction placed on the applicant’s religious freedom and private life by the law could be justified by a desire to guarantee that everyone can “live together” in society.

Since 2009 a lengthy debate has taken place in France on whether to ban the full-face veil. It initially arose in the context of a discussion about dealing with radicalism and extremism. After much consultation, in which bodies including the National Advisory Commission on Human Rights opposed a blanket ban of full-face cover in public, Law No. 2010-1192 of 11 October 2010 introducing such a ban was nonetheless adopted and entered into force on 11 April 2011. The law did not only relate to the full-face veil but rather prohibited any person from concealing their face in public. It was accepted that this impacted on Muslim women who wear the full-face veil. The applicant considers herself to be a devout Muslim who wears the niqab and burqa according to her religious faith, culture and personal convictions and without pressure from family members to do so. She does not wear a full-face veil all the time.  

The applicant claimed that the law was discriminatory and an invasion of her private life and right to religious freedom (amongst others). The government disagreed, stating that there were legitimate reasons for its introduction of the ban including the pursuit of gender equality, ensuring public safety and guaranteeing the fundamental requirements of “living together” in French society. The latter aim was, it said, only possible if everyone is able to socially interact, which requires them to be able to see each other’s faces (except in limited circumstances such as carnivals and sporting events).

The court, by a fifteen to two majority, found that there was no violation of Articles 8 and 9 ECHR. It found unanimously that: there was no violation of Article 14 taken together with Article 8 or 9; the complaints under Articles 3 (freedom from torture and other ill-treatment) and 11 (freedom of association) were inadmissible; and no separate issue arose under Article 10 (freedom of expression). Specifically, in relation to Articles 8 and 9 the Court stated:

• The ban amounted to a restriction of the applicant’s right to manifest her personal identity and religious beliefs (Articles 8 and 9);
• In introducing the ban, the government was pursuing two legitimate aims, those of ensuring public safety and protecting the rights and freedoms of others (which the court said could be linked to the government’s focus on “living together”);
• A blanket ban was not a proportionate means to achieve the aim of public safety as no general public safety threat had been identified;
• The government has a wide margin of appreciation to take its own decision as to the necessity of the law for the protection of the rights and freedom of others, in part as there is no European consensus on the issue. The government considered the law to be necessary and this was not in violation of ECHR. 

 In a strong dissent, Judges Nussberger and Jäderblom found that the law violated Articles 8 and 9 and could be seen as a sign of “selective pluralism and restricted tolerance”.

The Equal Rights Trust is deeply disappointed with this judgment of the Court. At the very least, the blanket ban on covering one’s face in public clearly violates Articles 8 and 9, taken both separately and together with Article 14. The restriction of individual rights of members of minorities cannot be justified by the purpose of enabling members of society to “live together” and “socially interact” without subjecting this justification to the strictest scrutiny. The French government’s (and Court’s) notion of “living together” is culturally biased and unreasonable, as it implies that seeing one’s face is absolutely necessary for any social interaction to occur. Further, ERT notes that, contrary to the purported aim of ensuring gender equality, there is evidence that the law has already had a negative impact on the rights of affected women, ignoring their voices and leaving them unable to participate in aspects of social and economic life whilst they uphold their religious beliefs. Finally, ERT notes with regret the poverty of the Court’s analysis of the applicant’s discrimination claim under Article 14, in which it fails to apply well established definitions of direct and indirect discrimination.

To read ERT’s Case Summary click here.

To read the judgment of the court click here.