Earlier this month, the European Court of Human Rights published its Grand Chamber decision in the case of S.A.S. v. France, which challenged the French “burqa ban” on wearing face coverings in public spaces. See ECtHR, S.A.S. v. France [GC], no. 43835/11, Judgment of 1 July 2014. The Grand Chamber held that prohibiting the concealment of a person’s face in public did not violate the European Convention on Human Rights (Convention).
This post examines the Grand Chamber’s judgment and reviews how the decision aligns with human rights doctrine concerning restrictions on religious wear.
The Grand Chamber’s S.A.S. Judgment
The applicant, S.A.S, is a practicing Muslim living in France who at times elects to wear religious clothing that conceals her face, such as a burqa or a niqab. In April 2011, a law prohibiting the concealment of a person’s face in public entered into force in France. The applicant claimed that the law prohibited her from wearing religious clothing of her choosing and violated her rights under articles 3 (cruel and degrading treatment), 8 (private life), 9 (freedom of religion), 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights, separately and in conjunction with Article 14 (freedom from discrimination). Id. at para. 3, 10-14.
The Grand Chamber declared inadmissible the applicant’s claims under articles 3 and 11 alone and taken together with Article 14 on the grounds that they were manifestly ill-founded according to the admissibility criteria set forth in Article 35 of the Convention. Id. at para. 69-73.
The Grand Chamber’s analysis focused principally on the compatibility of the French law with Article 8 (respect for private life) and Article 9 (freedom of religion) of the Convention. Because the Court found that the law constituted an “interference” with or “limitation” on the exercise of both of these rights, it then determined whether the interference was “prescribed by law,” pursues a legitimate aim, and is “necessary in a democratic society.” Id. at paras. 110-11. Because the ban was enacted legislatively, the judgment concentrates on the last two criteria.
The Accepted “Legitimate Aim”
The State proposed and the Grand Chamber accepted that the law pursued two legitimate aims:
- public safety, and
- “respect for the minimum set of values of an open and democratic society”
Id. at paras. 114-122. With regard to the first justification, the Court acknowledged that the evidence indicated that the French legislature intended the law to address issues of public safety that may arise from the concealment of faces in public. Id. at para. 115.
However, the Grand Chamber found it necessary to conduct a more thorough analysis of the State’s second justification, which is not explicitly identified in the Convention as an acceptable reason for restricting either the right to respect for private life or freedom of religion. The Grand Chamber rejected the French government’s reasoning that the law was intended to promote respect for gender equality and respect for human dignity, but accepted that the law works to ensure the conditions conducive to “living together” or “respect for the minimum requirements of life in society.” The Grand Chamber drew a connection between this notion of “living together” and the legitimate aim of the “protection of the rights and freedoms of others” which is explicitly listed in paragraph 2 of articles 8 and 9 of the Convention. Id. at para. 121.
Necessary for “Living Together”
Finally, the Grand Chamber considered whether the interference with the applicant’s rights was “necessary in a democratic society” for public safety or for “respect for the minimum set of values of an open and democratic society.” In this analysis, the Grand Chamber primarily focused on Article 9 (freedom of religion). The Grand Chamber noted that in a democratic society with diverse religious beliefs, “it may be necessary to place limitations on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.” Id. at para. 26.
The Grand Chamber accepted that the State is “in principle better placed than an international court to evaluate local needs and conditions” and therefore is typically granted a wide margin of appreciation in determining the extent to which a limitation on freedom of religion is necessary in a democratic society. Id. at para. 129. The Grand Chamber noted the legislature’s assertion that “[t]he systematic concealment of the face in public places, contrary to the ideal of fraternity…” Id. at para. 141.
Despite the latitude given to the State, the Grand Chamber found that a blanket ban on face coverings was not necessary for the promotion of public safety within the context of articles 8 or 9 of the Convention. The Grand Chamber held that a ban on facial coverings in public places was only proportionate in the case of a general threat to public safety, which the French government did not demonstrate in this case. Id. at para. 139.
However, the Grand Chamber did find that the ban could be considered necessary for ensuring the conditions of social life, under the rubric of protecting the rights of others. The majority wrote:
[…] It indeed falls within the powers of the State to secure the conditions whereby individuals can live together in their diversity. Moreover, the Court is able to accept that a State may find it essential to give particular weight in this connection to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places.
Consequently, the Court finds that the impugned ban can be regarded as justified in its principle solely in so far as it seeks to guarantee the conditions of “living together”.
Id. at para. 141-42 (internal citations omitted).
With regard to whether the ban was sufficiently proportionate to this aim, the Grand Chamber acknowledged that the blanket ban was broad, carried the possibility of criminal sanctions, primarily affected Muslim women, and could result in the isolation and restriction of autonomy of women who choose to wear a veil over their faces. Id. at paras. 145-46.
However, the Grand Chamber also reasoned that the ban only restricts certain types of clothing, was not motivated by the religious significance of full-face veils, and that the penalty for a violation is relatively minor. Id. at paras. 151-52.
The State proposed that wearing clothing that conceals the face in public was incompatible with the “ground rules of social communication.” Id. at paras. 153-54. The majority stated:
From that perspective, the respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society (see paragraph 128 above). It can thus be said that the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society.
Id. at para. 153.
As in other controversial cases, the Court held that the State’s margin of appreciation was particularly pronounced where the Council of Europe Member States displayed a lack of consensus on an issue. Here, the Grand Chamber noted that “France is very much in a minority position in Europe” in adopting a full-face veil ban, but that the issue was being debated in a number of different States and was “simply not an issue at all” in others. Id. at para. 156. As such, the Grand Chamber found the law to be proportionate to its legitimate aim, and therefore, not to contravene articles 8 or 9 of the Convention.
The public hearing held by the Grand Chamber in the case of S.A.S. v. France on November 27, 2013 is available for viewing on the European Court’s website. For additional background on the case, read IJRC’s previous news post.
Two judges issued a joint dissent arguing that the French law violated the applicant’s rights under articles 8 and 9 of the Convention. The dissent called into question both the purported legitimate aim of the law and its proportionality. ECtHR, S.A.S. v. France [GC], no. 43835/11, Judgment of 1 July 2014 (joint partly dissenting opinion of Judges Nussberger and Jaderblom), para 2. The dissenting judges contend that the majority decision “sacrifices concrete individual rights guaranteed by the Convention to abstract principles.” Id.
The dissenting judges asserted that the majority failed to show “which concrete rights of others within the meaning of Article 8 § 2 and Article 9 § 2 of the Convention could be inferred from the abstract principle of ‘living together’ or from the ‘minimum requirements of life in society.’” Id. at paras. 3-10. The dissent expressed doubt that the law pursues any legitimate aim under the Convention. Id. at para. 12.
The dissenting judges also challenge the proportionality of the ban, stating that the government failed to show why less restrictive measures could not have been put into place. Id. at paras. 13-24. The authors of the dissent assert that the State should not have been granted such a broad margin of appreciation in a case involving such a close connection between the prohibited dress code and an individual’s “religious faith, culture, and personal conviction.” Id. at para. 16-17.
Reactions to the Decision
Media outlets and members of civil society worldwide have reported on and responded to this Grand Chamber decision from the European Court of Human Rights. [CNN; BBC; France 24; Human Rights Watch; Amnesty International]
Human Rights Watch expressed concern that the decision will undermine Muslim women’s rights. Their critique of the decision specifically noted that this type of ban disproportionately affects Muslim women, violating their rights to be free from discrimination on the basis of gender and religion. [Human Rights Watch]
Amnesty International, one of several third party interveners in the case, also quickly criticized the European Court’s decision on the grounds that it “represents a profound retreat for the right to freedom of expression and religion and sends a message that women are not free to express their religious beliefs in public.” [Amnesty International]
Article 19, another organization that submitted a third party intervention in the case, expressed its disappointment with the decision and called on France to repeal the law despite the Court’s decision. [Article 19]
Other Cases Concerning Religious Dress
While the question of restricting religious dress has not been widely addressed under international human rights law, European and United Nations bodies have issued statements and decided complaints on this issue. (See the discussion of relevant statements and standards in the next section.)
The European Court of Human Rights and the UN Human Rights Committee have each considered a number of claims alleging that bans on religious clothing resulted in violations of the Convention, and have tended to reach different – and sometimes, directly opposing – conclusions. These prior decisions have examined restrictions on religious dress in public spaces, schools and public institutions, the workplace, and situations involving public safety and order. Unlike the blanket ban imposed in S.A.S. v. France, the majority of these cases involved prohibitions applied in more limited settings.
In the only other case from the European Court of Human Rights concerning the prohibition of religious garb in public spaces, Ahmet Arslan and others v. Turkey, the Court found a violation of Article 9 (freedom of religion) of the Convention. In this case, the Court found that the State did not establish a satisfactory reason for the interference and failed to demonstrate that the restriction was necessary in a democratic society. ECtHR, Ahmet Arslan and others v. Turkey, no. 41135/98, Judgment of 23 February 2010 (available in French, Russian, and Turkish). The Grand Chamber in S.A.S. v. France distinguished this prior decision on the grounds that the the clothing worn by the applicants in Ahmet Arslan and others v. Turkey did not conceal their faces, and the restriction there (unlike in S.A.S.) was “expressly based on the religious connotation of the clothing in question.” ECtHR, S.A.S. v. France, paras. 136, 151.
Public Safety and Order
Both the European Court and the Human Rights Committee have examined restrictions on religious clothing in the context of public safety. The European Court has declared inadmissible two applications concerning French laws that required the temporary removal of religious head or face coverings for the purpose of identification and security measures. In the case of Phull v. France, the applicant was asked to remove his turban for an airport security screening. The Court held that the arrangements for airport security “fell within the respondent State’s margin of appreciation, particularly as the measure was only resorted to occasionally.” ECtHR, Phull v. France (dec.), no. 35753/03, 11 January 2005. Similarly, in the case of El Morsli v. France, that applicant was refused entry to the French consulate when she refused to remove her veil in front of a man for an identity check. The Court found no violation of the Convention and reiterated that security checks are essential to public safety. ECtHR, El Morsli v. France (dec.), no. 15585/06, 4 March 2008.
However, the European Court and the Human Rights Committee disagree about the removal of religious headwear for the purpose of identity photos. The European Court dismissed as manifestly ill founded the application of Mann Singh, who claimed that the requirement of removing his turban for an identification photo interfered with his private life and his freedom of religion and conscience. The Court held that the interference was both justified and proportionate to the State’s interest in upholding public safety and law and order. ECtHR, Mann Singh v. France (dec.), no. 24479/07, 13 November 2008.
This same applicant later prevailed before the UN Human Rights Committee, which found a violation of Article 18 (freedom of religion or belief) of the Covenant. See Human Rights Committee, Shingara Mann Singh v. France, Communication No. 1928/2010, Views of 19 July 2013. The Committee emphasized the lack of proportionality, writing:
The Committee observes, however, that the State party has not explained why the wearing of a Sikh turban covering the top of the head and a portion of the forehead, but leaving the rest of the face clearly visible, would make it more difficult to identify the author, who wears his turban at all times, than if he were to appear bareheaded. Nor has the State party explained in specific terms how bareheaded identity photographs of people who always appear in public with their heads covered help to facilitate their identification in everyday life and to avert the risk of fraud or falsification of passports.
Id. at para. 9.4. (Duplication did not bar the Committee’s examination of the communication because the author was challenging a different domestic law. See id. at para. 5.4.)
In a previous case, Ranjit Singh v. France, the Human Rights Committee found that requiring the applicant to remove his turban for an identification photo violated his right to freedom of religion under the International Covenant on Civil and Political Rights (ICCPR). Human Rights Committee, Ranjit Singh v. France, Communication No. 1876/2009, Views of 22 July 2011. The Committee held that the State had failed to show that the interference was necessary for public safety. Id. at para. 8.4. It also highlighted the enduring nature of the interference, stating:
…even if the obligation to remove the turban for the identity photograph might be described as a one-time requirement, it would potentially interfere with the author’s freedom of religion on a continuing basis because he would always appear without his religious head covering in the identity photograph and could therefore be compelled to remove his turban during identity checks.
Schools and Public Institutions
The European Court and the Human Rights Committee have also considered several cases concerning the right to wear religious clothing in schools and other public institutions. In a number of cases submitted by both educators and students, the European Court has either declared the application inadmissible (ECtHR, Dahlab v. Switzerland (dec.), no. 42393/89, 15 February 2001; ECtHR, Kurtulmus v. Turkey (dec.), no. 65500/01, 24 January 2006; ECtHR,Köse and 93 Others v. Turkey(dec.), no. 26625/02, 24 January 2006;ECtHR, Aktas v. France (dec.), no. 43563/08, 30 June 2009(only available in French); ECtHR, Bayrak v. France (dec.), no. 14308/08, 30 June 2009 (only available in French); ECtHR, Gamaleddyn v. France (dec.), no. 18527/08, 30 June 2009 (only available in French); ECtHR, Ghazal v. France (dec.), no. 29134/08, 30 June 2009 (only available in French); ECtHR, J. Singh v. France (dec.), no. 25463/08, 30 June 2009 (only available in French); ECtHR, R. Singh v. France (dec.), no. 27561/08, 30 June 2009 (only available in French)) or held that no violation of the Convention had occurred (ECtHR, Leyla Sahin v. Turkey [GC], no. 44774/98, ECHR 2005-XI, Judgment of 10 November 2005; ECtHR, Dorgu v. France, no. 27058/05, Judgment of 14 December 2008; ECtHR, Kervanci v. France, no. 31645/04, Judgment of 4 December 2008 (only available in French)).
In the case of Leyla Sahin v. Turkey, for example, the Grand Chamber found that a university rule which barred students who refused to remove their head coverings from attending classes or exams did not violate the applicant’s rights to manifest her religion as protected by Article 9 of the Convention. ECtHR, Leyla Sahin v. Turkey [GC], no. 44774/98, ECHR 2005-XI, Judgment of 10 November 2005.
When addressing similar claims, the Human Rights Committee has reached very different conclusions from those of the European Court. In the case of Raihon Hudoyberganova v. Uzbekistan, the Committee found that – in the absence of a justification from the State – the expulsion of a student for refusing to remove her hijab violated the applicant’s right to be free from “coercion which would impair [her] freedom to have or to adopt a religion or belief of his choice” as protected by Article 18(2) of the ICCPR. Human Rights Committee, Raihon Hudoyberganova v. Uzbekistan, Communication No. 931/2000, Views of 5 November 2004.
In a similar case involving France, the applicant complained that his expulsion from school for refusing to remove his religious head covering violated his rights under the Covenant. Human Rights Committee, Bikramjit Singh v. France, Communication No. 1852/2008, Views of 1 November 2012. The Committee accepted that the restriction on religious dress “serve[d] purposes related to protecting the rights and freedoms of others, public order and safety” because it was meant to address recent tensions and incidents of harassment related to religious dress in schools. Id. at para. 8.6. However, the Committee found that the State had not demonstrated that applicant’s dress posed a threat to the rights or freedoms of others at the school, or that his permanent expulsion was proportionate or necessary to further the State’s interests. Id. at paara. 8.7. The Committee therefore held that the expulsion, motivated by the author’s “inclusion in a broad category of persons defined by their religious conduct” constituted a violation of the ICCPR. Id.
The Committee on the Elimination of Discrimination (CEDAW Committee) has also received a communication concerning restrictions on wearing religious clothing, in which a teacher complained that requiring the removal her headscarf violated her right to work under Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women. However, the CEDAW Committee dismissed the case for failure to exhaust domestic remedies and never reached the merits. CEDAW Committee, Rahime Kayhan v. Turkey, Communication No. 8/2005, Views of 27 January 2006.
The European Court has received several applications concerning prohibitions on religious clothing in the workplace. In the case of Eweida and others v. the United Kingdom, the Court considered the appropriateness of restricting employee’s use of religious symbols, in this case cross necklaces, while at work. With regard to the first applicant, an airline employee, the Court found a violation of the applicant’s right to manifest her religion because the domestic courts had failed to strike a fair balance when they gave too much weight to the desire of the applicant’s employer to protect its corporate image. ECtHR, Eweida and others v. the United Kingdom, nos. 48420/10, 59842/10, 51671/10, and 36516/10, Judgment of 15 January 2013, at para. 94. It also noted that the cross necklace was “discreet and cannot have detracted from her professional appearance” and that there was no evidence that employees’ use of religious dress or symbols had negatively impacted the company’s image. Id. (The Court did not require a showing of this sort of “evidence” in the S.A.S. v. France decision.) In the case of the second applicant, a nurse, the Court reached a different decision, finding that she could be required to remove her cross necklace for health and safety reasons. Id. at para. 99.
For more information on European Court decisions regarding religious symbols and clothing, see the Court’s recently updated factsheet on this topic.
Additional Human Rights Standards
Several human rights bodies and experts have addressed individuals’ right to manifest their religion through the wearing of specific clothing or symbols.
A 2006 report of the UN Special Rapporteur on the freedom of religion or belief discusses in detail the issue of the display of religious symbols. The report provides an overview of the legal framework and international caselaw on this topic and also includes a list of criteria for the evaluation of restrictions and prohibitions on wearing religious symbols. The criteria are intended to provide guidance in decisions that require the balancing of competing human rights. Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir: Civil and Political Rights, Including the Question of Religious Intolerance, E/CN.4/2006/5, 9 January 2006.
The Human Rights Committee addresses bans on the wearing of veils and other religious clothing in its General Comment 22. The Committee asserts, “[t]he freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts.” Human Rights Committee, General Comment 22: The rights to freedom of thought, conscience and religion, UN Doc. CCPR/C/21/Rev.1/Add.4, 20 July 1993, para. 4. The Committee specifically notes that the observance and practice of a religion may include “wearing of distinctive clothing or head coverings.” Id.
Additionally, the Parliamentary Assembly of the Council of Europe (PACE) called on States to adopt targeted measures instead of general prohibitions when addressing the veiling of women. In Resolution 1743, PACE acknowledges that unveiling may be necessary in certain circumstances, but suggests that general bans “might have the adverse effect of generating family and community pressure on Muslim women to stay at home and confine themselves to contacts with other women.” See Parliamentary Assembly of the Council of Europe, Resolution 1743: Islam, Islamism and Islamophobia in Europe, 23 June 2010, para. 17. Similarly, PACE Recommendation 1927 calls on European States not to implement general bans on full veiling and to respect women’s ability to choose whether or not to wear religious clothing. Parliamentary Assembly of the Council of Europe, Recommendation 1927: Islam, Islamism and Islamophobia in Europe, 23 June 2010, para. 3.13.
European Court of Human Rights
The European Court of Human Rights is a full time regional human rights court composed of 47 judges. The Court is responsible for deciding complaints submitted by individuals or States concerning alleged violations of the European Convention on Human Rights. Currently, 47 States have ratified the Convention. Some of these States have also elected to ratify the Convention’s Additional Protocols.