The European Court of Human Rights has ruled on two Belgian cases involving bans on wearing the niqab in public.

The background

In Belcacemi and Oussar v Belgium [2017] ECHR 655 [in French], the applicants – Ms Samia Belcacemi (a Belgian national) and Ms Yamina Oussar (a Moroccan national living in Belgium) – challenged the Belgian Law of 1 June 2011 banning the wearing in public places of clothing which partially or totally covers the face.

Ms Belcacemi and Ms Oussar decided on their own initiative to wear the niqab out of religious conviction. Following the enactment of the Law of 1 June 2011, Ms Belcacemi initially decided to continue wearing the niqab in the street; however, under pressure, she subsequently decided to remove her veil temporarily since she was afraid that she might be fined or imprisoned. Ms Oussar decided to stay at home, with the resulting restriction on her private and social life.

On 26 July 2011 Ms Belcacemi and Ms Oussar brought an action for the suspension and annulment of the law before the Cour Constitutionelle. Their cases were dismissed in October 2011 and in December 2012. Relying on Articles 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion), and 10 (freedom of expression), taken separately and together with Article 14 (prohibition of discrimination) Ms Belcacemi and Ms Oussar complained about the ban on wearing the full veil. They also relied on Articles 3 (prohibition of inhuman or degrading treatment), 5 §1 (right to liberty and security), 11 (freedom of assembly and association) and Article 2 of Protocol No 4 (freedom of movement), taken separately or together with Article 14.

In Dakir v Belgium [2017] ECHR 656 [in French] Ms Fouzia Dakir, a Muslim who had decided on her own initiative to wear the niqab, challenged a by-law adopted in June 2008 by three Belgian municipalities banning the wearing in public places of clothing that concealed the face. In June 2008 the municipalities of Pepinster, Dison and Verviers adopted a municipal by-law providing in Article 113bis for a ban on wearing clothing concealing the face, at all times and in all public places. In August 2008 Ms Dakir applied to the Conseil d’État for the annulment of the ban. She claimed among other things that the provision expressly concerned the Islamic veil and that the resulting ban constituted an interference with her rights under Articles 8, 9, 10 and 14 ECHR. She also contended that the interference had no legitimate aim because secularism was not a constitutional principle and wearing the niqab could not be subjected to a blanket ban. In June 2011 the Conseil d’État dismissed the case for failure to comply with an admissibility condition that it raised of its own motion.

Relying on Articles 8, 9 and 10, taken separately and together with Article 14, she complained about the ban on the niqab. She also relied on Article 6 §1 (right of access to a court) and Article 13 (right to an effective remedy).

The judgments

In both cases, the Court emphasised that the prohibition on niqabs in public places raised questions about the right to respect for the privacy of women who wished to wear the niqab out of religious conviction and their right to manifest. In both cases also, the Court accepted that states parties were in principle better placed than international judges to assess local needs and circumstances and that, with regard to Article 9, they should in principle be given a wide margin of discretion in deciding whether and to what extent a restriction on the right to manifest one’s religion or belief was “necessary”. However, in order to determine the margin of appreciation in a given case, the Court had also to take into account the specific issue at stake and, where appropriate, the consensus and common values that emerged from the practice of states parties [Belcacemi 51: Dakir 54]. The Court was also fully aware that a ban risked contributing to the consolidation of stereotypes and encouraging intolerance, and that the principal impact of the prohibition was on Muslim women who wished to wear the niqab. It was also aware that the prohibition was a restriction on pluralism insofar as it prevented certain women from expressing their personality and convictions by wearing the niqab in public [Belcacemi 52: Dakir 55].

In Belcacemi and Oussar, the Court recalled that it was settled case-law that the expression “prescribed by law” requires that the impugned measure should have a basis in domestic law; but it was also about the quality of the law in question, the accessibility of the law to the persons concerned and whether its formulation was sufficiently precise to allow them, if need be, to seek expert advice [45]. The Belgian Cour Constitutionnelle had applied those principles in the present case and considered that the Law of 1 June 2011 met the requirements of precision and predictability, provided that the terms “places accessible to the public” were Interpreted as not targeting places of worship. There had been nothing arbitrary in that reasoning. Since the applicants stated that they had been able to foresee that they might be penalised if they continued to wear the niqab in public, the Court considered that the Law of 1 June 2011 was sufficiently precise to satisfy the requirement of foreseeability [46]. Moreover, the prohibition at issue was couched in terms very similar to the French Law of 11 October 2010 prohibiting the concealment of the face in public; and the Court had previously held in S.A.S. v France that they fulfilled the criteria established by its case-law on paragraph 2 of Articles 8 and 9 [47]. The same approach therefore applied in the present case [47 & 48].

The Court concluded from the travaux préparatoires of the Belgian Law and the analysis made by the Cour Constitutionelle that the terms in which the problem had been debated were very close to the arguments prior to the adoption of the French law examined in S.A.S. v France [50]. In adopting the ban, Belgium had intended to respond to a practice that it considered incompatible with social communication and, more generally, the establishment of human relations essential to the functioning of a democratic society. From that point of view, as in France, it appeared that the acceptability or otherwise of wearing the niqab in public was a choice for society [53]. Further, there was still no consensus among states parties on the acceptability of the niqab, whether for or against a general prohibition; and that lack of consensus justified a very wide margin of appreciation for the respondent state [55].

On the issue of proportionality, it noted that the maximum penalty in Belgium was imprisonment, whereas in France it was only a fine [56]. The heavier penalty could be applied only for a subsequent offence [57] and, from the explanations provided by the Government, the Court concluded that the application of the law by the criminal courts had to comply with the principle of proportionality and with the Convention. The penalty of imprisonment to which Ms Belcacemi and Ms Oussar could theoretically be exposed was therefore tempered by the fact that it was not automatic [58]. The Court further observed that concealment of the face in a public place was a “mixed” offence relating both to criminal and to administrative proceedings and that in the latter case – contrary to the applicants’ submissions – alternative measures were possible and undertaken, in practice, at the municipal level [59].

The present application did not relate to a specific penalty to which the applicants had been subjected. The assessment of the proportionality of a sanction to be imposed under the Law of 1 June 2011 fell within the jurisdiction of the national court because the role of the European Court of Human Rights was limited to determining whether or not the margin of appreciation granted to the respondent state had been exceeded [60]. Particularly in view of the extent of the margin of appreciation enjoyed by Belgium in the present case, the Court concluded that the prohibition in the Law of 1 June 2011, though controversial and undeniably posing risks in terms of the promotion of tolerance within society, was proportionate to the aim pursued: the preservation of the conditions for “living together” and the protection of the rights and freedoms of others [61]. The restriction was therefore “necessary in a democratic society” in terms of Articles 8 and Article 9 [62]. Accordingly, there had been no violation of either Article 8 or Article 9 [63].

As to the complaint under Article 3, the minimum level of seriousness to be achieved by ill-treatment in order to engage that Article had not been met [71]. Finally, the applicants’ complaints under Articles 5, 11 and 14 and Article 2 of Protocol No 4 were dismissed as manifestly ill-founded [73-79].

In Dakir, the Court noted that Ms Dakir was not contesting the status of the by-law and that the prohibition at issue satisfied the criteria laid down in the Court’s case-law on paragraph 2 of Articles 8 and 9 [48]. The parties also took it for granted that the municipal prohibition pursued the same objectives as those of the general law that was adopted subsequently: public security, equality between men and women and “living together” in society [49]. in S.A.S. v France, the Court had accepted that the concern to meet the minimum requirements of life in society could be regarded as an element of the “protection of the rights and freedoms of others” and that a ban could be justified insofar as it aimed at guaranteeing the conditions of “living together”. The same approach applied in the present case [51]: the Belgian situation was very similar to the French [52].

It noted, obiter, that the decision-making process leading to the prohibition under the Law of 1 June 2011 had lasted several years, after a wide debate in the Federal Parliament and a full and detailed examination of all the interests at stake by the Constitutional Court [57]. Although the scope of the prohibition was broad, the contested regulations did not affect the freedom to wear any religious clothing in public that did not conceal the face [58].

As in Belcacemi, the Court noted that there was no consensus on the issue among states parties – which justified the Court’s view that Belgium had a very wide margin of appreciation in the matter [59] – so the prohibition imposed by the coordinated regulations of the Vesdre police zone was proportionate to the aim pursued, namely the preservation of the conditions of “living together” as part of the “protection of the rights and freedoms of others” [60] and was therefore “necessary in a democratic society” [61]. Accordingly, there had been no violation of either Article 8 or Article 9 or of Articles 8 and 9 taken with Article 14. No separate question arose under Article 10, either on its own or taken with Article 14.

As to Article 6, Ms Dakir complained that the Conseil d’État had not examined her arguments on their merits on the ground that she had not directed her action against Article 113 when she had properly directed its action against Article 113bis, which, according to the Conseil itself, was a repetition. She argued that the conditions for the admissibility of an application were excessively rigid [72].

The Court noted that the Conseil d’État had declared the applicant’s action for annulment inadmissible for failure to comply with a condition of admissibility that it had raised of its own motion [74]. It was primarily for the national authorities, in particular, the domestic courts, to interpret and apply the domestic law and, always provided that the interpretation of the law had not been arbitrary or patently unreasonable, the Court’s role was limited to verifying its compatibility with the Convention [75]. Furthermore, the rules relating to the formalities and time-limits for bringing an action were intended to ensure the proper administration of justice and, in particular, to ensure legal certainty [76]. Nor was the right of access to a court was absolute; it had implied limitations, in particular as regards the conditions for the admissibility of an action [77]:

“Nevertheless, the limitations applied must not restrict open access to the individual in such a way or to such an extent that the law is affected in its very essence. Moreover, they are compatible with Article 6 §1 only if they pursue a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim pursued [78].

In the present case, the Court understood the Government’s observations that Article 113 was a general provision and Article 113bis was a provision that constituted a particular application of it. Nevertheless, the municipalities concerned had inserted Article 113bis into their regulations in the belief that Article 113 by itself was insufficient to prohibit the wearing of the burqa in public. The fact that Ms Dakir had sought annulment of the specific provision that was liable adversely to affect her had had the effect of depriving her of an examination by the Conseil d’État of her substantive arguments [79]. There had therefore been a violation of Article 6 §1.

Comment

In light of the previous judgment in S.A.S v France, the judgment was entirely predictable. “Living together” [vivre ensemble] appeared again. in spite of the fact nowhere in the Convention does the term appear. The fact that the Court found a violation of Article 6 §1 in the case of Ms Dakir makes little difference to the overall outcome: the Law of 1 June 2011 and the impugned by-law were held not to have breached Article 9.