Ban on covering face in public not a breach of ECHR: SAS v France

In SAS v France [2014] ECHR 695 the Grand Chamber of the ECtHR has held by a majority [Nussberger and Jäderblom JJ dissenting] that the French law prohibiting the concealment of one’s face in public places (Law no. 2010-1192 of 11 October 2010) does not violate Article 8 (respect for private and family life) or Article 9 (freedom of thought, conscience and religion) of the Convention and, unanimously, that there had been no violation of Article 14 ECHR (prohibition of discrimination) combined with Articles 8 or 9. The Court further declared inadmissible the applicant’s complaints under Articles 3 (inhuman or degrading treatment) and 11 (assembly and association), taken separately  and together with Article 14.

SAS v France was about  the complaint of a Frenchwoman, a practising Muslim, that she was no longer allowed to wear the full-face veil in public following the entry into force on 11 April 2011 of Law no. 2010-1192. She told the Court that she wore the burqa and niqab in accordance with her religious faith, culture and personal convictions. She stressed that neither her husband nor any other member of her family had put pressure on her to wear a veil. She was content not to wear the niqab in certain circumstances but wished to be able to wear it when she chose to do so. Her aim was not to annoy others but to feel at inner peace with herself.

The Government argued that she was not a “victim”, that she had failed to exhaust domestic remedies and that her claim was “an improper exercise of the right of individual application”, which it described as containing “a totally disembodied argument, lodged on the very day the prohibition on concealing the face in public came into force by an applicant who ha[d] not been the subject of domestic proceedings and of whom nothing [was] known, except what she [had] seen fit to say about her religious opinions and about her uncertain way of expressing them in her behaviour” [para 62]. The GC dismissed the Government’s objections on admissibility.

As to the complaints under Articles 8 and 9 (which were the guts of her complaint), there had been an interference or limitation of the exercise of the applicant’s rights protected by Articles 8 and 9 of the Convention [para 110] and that limitation or interference was “prescribed by law”; nor did the applicant dispute that the provisions satisfied the criteria laid down in the Court’s case-law on Article 8 § 2 and Article 9 § 2 [para 112].

The enumeration of the exceptions to the individual’s freedom to manifest his or her religion or beliefs was exhaustive and the definition restrictive. A limitation of this freedom must, in particular, pursue an aim that could be linked to one of those listed in this provision. The same approach applied in respect of Article 8 [para 113]. “Public safety” was one of the aims enumerated in the second paragraph of Article 9; and the Court noted the Government’s observation that the ban was necessary for the safety of persons and property and to combat identity fraud [para 115].

The Government referred to three values [para 116]: respect for equality between men and women, respect for human dignity and respect for the minimum requirements of life in society. It submitted that they could be linked to the “protection of the rights and freedoms of others” within the meaning of Articles 8(2) and 9(2). The Court was not convinced by the Government’s arguments about equality between men and women [para 118] and human dignity [para 120]. However

“… the Court finds, by contrast, that under certain conditions the ‘respect for the minimum requirements of life in society’ referred to by the Government – or of ‘living together’, as stated in the explanatory memorandum accompanying the Bill (see paragraph 25 above) – can be linked to the legitimate aim of the ‘protection of the rights and freedoms of others’ “ [para 121].

Respect for the conditions of “living together” was a legitimate aim for the measure at issue, particularly as France had a wide margin of appreciation on the general policy question – about which there were significant differences of opinion. The restriction could be regarded as proportionate to the aim pursued: the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others” [para 157]. The impugned limitation could therefore be regarded as “necessary in a democratic society” [para 158]. The ban imposed by the Law of 11 October 2010 did not, therefore, breach either Article 8 or Article 9.

Dissenting, Nussberger and Jäderblom JJ took the view that criminalising the full-face veil was disproportionate to the aim of protecting the idea of “living together”. That aim could not in any case be readily reconciled with the Convention’s restrictive catalogue of grounds for interference with basic human rights – and there had therefore been a violation of Articles 8 and 9.

Comment

The judgment seems to be in line with the recent trend to give states parties a wide margin of appreciation on matters relating to religious observance both in relation to their domestic regulation and their manifestation by the state. LautsiSindicatul Păstorul cel Bun and, most recently, Fernández Martínez all seem to point in the same direction: the signpost is very clearly labelled “We don’t want to go there”.

Nevertheless, the reasoning of the majority has some slightly odd features. Referring to criminal sanctions, the Court said that

“… It is certainly understandable that the idea of being prosecuted for concealing one’s face in a public place is traumatising for women who have chosen to wear the full-face veil for reasons related to their beliefs. It should nevertheless be taken into account that the sanctions provided for by the Law’s drafters are among the lightest that could be envisaged, because they consist of a fine at the rate applying to second-class petty offences (currently 150 euros maximum), with the possibility for the court to impose, in addition to or instead of the fine, an obligation to follow a citizenship course” [para 152].

Which is just about defensible if prosecution is going to be a single event. But if (as presumably is possible: I don’t know because I’m not a French criminal lawyer) people can be prosecuted for repeat offences, then the fines will begin to mount. But in any case, reference to the penalty is a red herring: if the interference is legitimate then it doesn’t matter if the penalty is 150 euros or two years’ imprisonment, but if the interference is illegitimate then a trivial penalty does not legitimise it. It’s an argument that simply does not stack up.

In the previous paragraph the majority noted

“… the fact that the impugned ban mainly affects Muslim women who wish to wear the full-face veil. It nevertheless finds it to be of some significance that the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face” [para 151].

To which one might ask, “But in order to fall foul of Article 9, does it have to be based on a ‘religious connotation’?”. Whether based on religion or not, the practical effect for a particular group of Muslim women is the same.

The dissenters summarised their argument as follows. In their view, the majority decision

“… sacrifices concrete individual rights guaranteed by the Convention to abstract principles. It is doubtful that the blanket ban on wearing a full-face veil in public pursues a legitimate aim. In any event, such a far-reaching prohibition, touching upon the right to one’s own cultural and religious identity, is not necessary in a democratic society. Therefore … there has been a violation of Articles 8 and 9 of the Convention” [para 2].

It’s the “religious and cultural identity” point that gives me pause for thought.

Frank Cranmer

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For further comment see SAS v France and the face-veil ban: some initial reactions.

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