For the moment, the riots in France over the public ban on face veils have abated, but public discussion of the law’s possible infringement on freedom of religion continues. The riots, which began on July 19 in Trappes, a suburb west of Paris, were prompted by the arrest of a man whose wife was ticketed for wearing a face veil in public. [AP] Nearly 250 people clashed with police and 20 cars were set on fire during two nights of protests. [AP]
France’s “Burqa Ban”
The riots were one of the first major tests France has faced since the controversial face veil ban went into effect. In October 2010, France adopted the law forbidding individuals from concealing their faces in a public space, defined as any public highway or premises open to the public or used for public service. Failure to comply is punishable by a maximum fine of 150 Euros or mandatory completion of a class on the meaning of citizenship. Forcing an individual to wear a veil can result in a fine of 30,000 Euros and one year in prison, or 60,000 Euros and up to two years in prison if the individual is a minor. The law eventually came into effect in April 2011 after a period of public education and awareness raising. [Official Journal of the French Republic]
Although the ban is facially neutral, it is generally directed against Muslim women who wear burqas or niqabs. See Library of Congress, France: Highlights of Parliamentary Report on the Wearing of the Full Veil. Supporters of the law argue that it promotes gender equality, the rights of Muslim women who wear face coverings, and increased public safety. In a New York Times Op-Ed piece, Jean-François Copé, a champion of the “burqa ban,” dismissed international criticism that such bans infringe on religious freedom since wearing Islamic headscarves that leave the face uncovered, such as a hijab, would still be permissible. But a burqa, which covers the entire face, he argued, is “a mask, a mask worn at all times, making identification or participation in economic and social life virtually impossible . . .[and] represent[s] a refusal to exist as a person in the eyes of others.”
Human Rights Concerns
However, human rights experts and organizations have continuously urged reconsideration of the ban. The Council of Europe Commissioner for Human Rights, wrote in July 2011 that the law would be likely to “further stigmatise [Muslim] women and lead to their alienation from the majority society” rather than liberating them. There is evidence that this has been the case, and veiled Muslim women – in particular – have been the target of attacks. [WeNews] A report released by the Open Society Foundations shortly after the law’s entry into force demonstrated through individual stories that Muslim women wearing the niqab or burqa in France indeed experienced increased discrimination, including verbal and physical abuse, since the bill had been introduced and had retreated into their homes as a result. [OSF] Amnesty International also expressed its concerns that “[a] complete ban on the covering of the face would violate the rights to freedom of expression and religion of those women who wear the burqa or the niqab as an expression of their identity or beliefs.” [AI] Amnesty proposed that, instead of criminalizing women for dressing in accordance with their preference, that the State protect women against any pressure to wear a burqa or niqab “by combating gender stereotypes, violence against women and discriminatory attitudes, and by applying criminal and family law where appropriate.” [AI]
Even before the law’s adoption, the Parliamentary Assembly of the Council of Europe issued a recommendation in which it called on Member States to:
not to establish a general ban of full veiling or other religious or special clothing, but to protect women from all physical and psychological duress as well as to protect their free choice to wear religious or special clothing and ensure equal opportunities for Muslim women to participate in public life and pursue education and professional activities; legal restrictions on this freedom may be justified where necessary in a democratic society, in particular for security purposes or where public or professional functions of individuals require their religious neutrality or that their face can be seen
COE Recommendation 1927 (2010), Islam, Islamism and Islamophobia in Europe, 23 June 2010, para. 3.13.
During France’s 2013 Universal Periodic Review, many UN Member States recommended that France reconsider, amend, or remove the ban on face-veils in public spaces. See Human Rights Council, Report of the Working Group on the Universal Periodic Review on France, Twenty-third Session, UN Doc. A/HRC/23/3, 21 March 2013. Human rights stakeholders throughout France and around the globe submitted reports to the UN Human Rights Council, urging the France to reconsider the “burqa ban.” The Islamic Human Rights Commission expressed its concern that the ban was the result of rising Islamophobia, and that women who decided to wear this religious dress were discriminated against or, in some instances, attacked by local individuals. The Commission Nationale Consultative des Droits de l’Homme (National Consultative Commission on Human Rights) expressed significant reservations with the burqa ban, believing the goals of secularism did not justify the law.
Although France accepted the recommendation to engage in a comprehensive study regarding the effect of the facial veil ban, France did not accept the many recommendations to repeal or amend the law. See Human Rights Council, Report of the Working Group on the Universal Periodic Review on France, addendum, Twenty-third Session, UN Doc. A/HRC/23/3/Add.1, 28 May 2013, at paras 10-12.
Court Challenges to Face Veil Ban in the European Court of Human Rights
Advocates have called for the amendment or repeal of the burqa ban before other fora, as well. The same day that France’s face-veil ban took effect, a Muslim woman filed an application, S.A.S. v. France, in the European Court of Human Rights alleging that the law violated various protections in the European Convention on Human Rights, including her right to respect for private and family life (Article 8), freedom of religion (Article 9), freedom of expression (Article 10), and the prohibition of discrimination based on religion (Article 14). ECtHR, S.A.S. v. France, no. 43835/11. While Article 9 authorizes a state to restrict the freedom of religion, it may only do so if “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
In support of her application, the applicant cited comments made by Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe that proponents of burqa and niqab bans have failed to demonstrate that these garments infringe upon democracy, security, or public order. ECtHR, S.A.S. v. France, no. 43835/11, at sec. D. On July 12, 2012, the Open Society Justice Initiative also filed written comments on the permissible scope of State limitations on dress reflecting personal identify or religious dress absent compelling justifications. This case appeared to be the first challenge to the French law. [1]
S.A.S. v. France is not without precedent, however. The European Court of Human Rights has decided several challenges to national restrictions on religious dress in public settings, including three applications against France which it deemed inadmissible, finding the applicants’ arguments “manifestly ill-founded” because it viewed the restrictions as serving a legitimate purpose. See ECtHR, Factsheet: Freedom of Religion (July 2013). Most relevantly, the Court dismissed challenges to France’s 2004 law banning conspicuous religious dress in schools. See, e.g., ECtHR, Aktas v. France, no. 43563/08, Decision of 30 June 2009.
However, in Arslan and Others v. Turkey, the European Court determined that Turkey violated the applicants’ rights to freedom of religion by arresting them for wearing religious dress in public. Turkey found the applicants who wore black turbans and salvars (tunics), and carried sticks – reminiscent of the Prophet Muhammed – while walking throughout Ankara had violated a law that prohibited wearing certain religious attire in public spaces. ECtHR, Arslan and Others v. Turkey, no. 41135/98, Judgment of 23 February 2010, paras. 7, 10. The Court believed that the wearing of religious attire fell within the ambit of Article 9’s protections regarding the freedom to manifest religion. Id. at para. 35. Although the Court accepted as a legitimate purpose Turkey’s claim that the restriction was to promote secularism and democratic principles (para. 43), Turkey had not demonstrated that the clothing restrictions as applied to the applicants were necessary to prevent proselytizing or maintain public order. Id. at para. 52. Importantly, the European Court distinguished this case from its previous decisions, highlighting the fact that the Turkish law applied to public spaces generally and not just public establishments (such as schools) where preserving religious neutrality could be of greater priority. Thus, the applicants’ prison sentences violated Article 9 of the European Convention of Human Rights.
On May 30, 2013, S.A.S. v. France was reassigned to the Grand Chamber of the European Court.
[1] Since it appears that the applicant has not sought to challenge the case in France itself, it is unclear whether the European Court will consider the application admissible. Under Article 35 of the European Convention on Human Rights, an individual who files an application in the European Court of Human Rights must first demonstrate that she has exhausted domestic remedies. However, on October 7, 2010, the French Constitutional Council determined in an advisory opinion that the face veil ban was constitutional, finding the law’s restrictions were not disproportionate to its goal of “safeguarding public order and guaranteeing constitutionally protected rights.” The Council, citing the Declaration of the Rights of the Man of 1789’s Article 10 protection (“No one shall be harassed on account of his opinions and beliefs, even religious, on condition that the same do not disturb public order as determined by law”) warned that the ban could not permissibly be used to restrict wearing a face-veil in places of worship open to the public. Nonetheless, as a result of the Council’s finding, French authorities must apply the law unless a court finds it incompatible with a provision of international law or the laws of the European Union. [Constitutional Council] The applicant could conceivably argue that, in view of the Constitutional Council’s opinion, challenging the law domestically would be futile.