The United Nations Human Rights Committee has concluded that France’s ban on face coverings in public violates the rights of women who wear full-face veils for religious reasons, a conclusion directly at odds with a European Court of Human Rights (ECtHR) judgment from 2014. Compare Human Rights Committee, Hebbadj v. France, Communication No. 2807/2016, Views of 17 July 2018, UN Doc. CCPR/C/123/D/2807/2016 and Human Rights Committee, Yaker v. France, Communication No. 2747/2016, Views of 17 July 2018, UN Doc. CCPR/C/123/D/2807/2016 with ECtHR, S.A.S. v. France [GC], no. 43835/11, ECHR 2014, Judgment of 1 July 2014. The Committee’s views, published on October 17, 2018, concluded that two women’s criminal convictions under the 2010 ban violated their rights to freedom of religion and to non-discrimination under the International Covenant on Civil and Political Rights (ICCPR).
The Human Rights Committee rejected France’s argument, which had been accepted by the ECtHR, that the ban was proportionate to, and the least restrictive means of achieving, the State interest in promoting the conditions for “living together” in a democratic society. In response to IJRC’s questions, the Human Rights Committee Chairperson, Yuval Shany, also noted that the Committee does not apply the ECtHR’s unique “margin of appreciation” doctrine, which gives European States latitude in balancing individual rights against State interests, particularly in areas where there is little consensus among States on a specific social issue.
The cases began when two women were separately stopped, in 2011, for identity checks while wearing a niqab (a full-face veil) on the streets of Nantes, France. See, e.g., Human Rights Committee, Yaker v. France, para. 2.1. In 2012, both women were convicted and fined 150 euros under a 2010 French law that criminalized concealing one’s face in public. See id. at para. 2.2. The French law, Act No. 2010-1192, states, “No one may, in a public space, wear any apparel intended to conceal the face [unless the apparel is] authorised by law or justified for health or professional reasons, sports practices, festivities or artistic or traditional manifestations.” See id. at para. 2.2. In 2013, Miriana Hebbadj submitted an application to the ECtHR, which was rejected as inadmissible, for unspecified reasons, in September 2014, two months after the Court’s Grand Chamber judgment in S.A.S. v. France.
The women, both represented by attorney Roger Kallas, submitted their complaints to the Human Rights Committee in early 2016. The Committee found Sonia Yaker’s communication admissible in July 2017, and analyzed the admissibility of Miriana Hebbadj’s communication together with the merits in its July 2018 decision. Unlike the European Court of Human Rights (and the Inter-American Commission on Human Rights), the Human Rights Committee does not impose a strict six-month time limit on the presentation of complaints (counted from the date on which the victim is notified of the decision that exhausts domestic remedies). As explained further by Chairperson Yuval Shany to IJRC, “The Committee follows a presumptive three-to-five year rule for submission of cases (through application of abuse of right doctrine), which – in light of the limited information about how to approach the Committee available to many would-be plaintiffs – strikes what we consider a reasonable balance between the competing considerations mentioned in the question.”
Upon ratifying the ICCPR, France submitted a reservation rejecting the Human Rights Committee’s jurisdiction over individual complaints where “the same matter is being examined or has already been considered under another procedure of international investigation or settlement.” France raised this reservation in challenging the admissibility of Miriana Hebbadj’s complaint, pointing to the ECtHR’s rejection of her application as inadmissible. See Human Rights Committee, Hebbadj v. France, para. 4.3. The Committee determined that, in this instance, because the ECtHR letter provided “no argument or clarification regarding the inadmissibility decision,” it could not conclude that the ECtHR had examined the complaint’s merits in any way. See id. at para. 6.4. The Committee found the complaint admissible. See id. at para. 6.7.
Human Rights Committee Decision
The applicants made nearly identical complaints, both alleging that their convictions violate their right to freedom of religion under Article 18 of the ICCPR and their right to non-discrimination under Article 26 of the ICCPR. See id. para. 3.1. The applicants argued that wearing the niqab is part of their religious practice motivated by religious beliefs and that punishing them for doing so violates their right to religion. See id. at para. 3.2. The applicants also argued that Act No. 2010-1192 treats the applicants differently from the rest of the population by restricting their ability to live according to their religion and to move freely in public. See id. at para. 3.12. Although the law does not explicitly target Muslim women, the applicants cited figures showing that the vast majority of people punished under the law are Muslim women. See id. at para. 3.13.
Article 18: Right to Freedom of Religion
In both cases, the Human Rights Committee first considered whether France’s general prohibition on concealing one’s face is a restriction on the applicants’ right to religion. See Human Rights Committee, Hebbadj v. France, paras. 7.2-7.3; Human Rights Committee, Yaker v. France, paras. 8.2-8.3. The Committee found that because the law forced the applicants to choose between acting in accordance with their beliefs or facing punishment, the ban constituted a restriction on the applicants’ right to manifest their religion. See Human Rights Committee, Yaker v. France, para. 8.3.
France argued that the ban on face coverings is necessary to protect both the rights of others and public safety and order, a permissible limitation on the right to religion, but the Human Rights Committee disagreed. See id. at paras. 8.6-8.12. The Committee acknowledged that while it may be necessary to see individuals’ faces in certain circumstances for identification or security reasons, the law is a blanket ban not limited to those circumstances or proportionate to that objective. See id. at para. 8.7. As for the rights of others, France argued that showing one’s face is necessary to establish the “minimum level of trust required to live together in an open and egalitarian society.” See id. at para. 8.9. The Committee, however, held that the concept of “living together” is not a fundamental right, and that France failed to establish a connection between any fundamental rights of others and the ability to see veiled women’s faces in public. See id. at para. 8.10. The Committee concluded that the ban was not necessary to serve a legitimate interest, and thus found that it violates the applicants’ freedom of religion. See id. at para. 8.12.
Article 26: Right to Non-Discrimination
The Committee found that the ban has a disproportionate impact on Muslim women because it allows exceptions for other forms of public face-coverings and is primarily enforced against women wearing a niqab or burqa. See id. at para. 8.13. Under Article 26, a seemingly neutral law with discriminatory effects violates the right to non-discrimination unless the State can show that the law is based on objective and reasonable criteria in pursuit of a legitimate State interest. See id. at para. 8.13. The Committee concluded that the ban disproportionately affects the applicants as Muslim women and introduces an unjustified distinction between them and other individuals who are permitted to cover their faces under the exceptions to Act No. 2010-1192. See id. at paras. 8.15-8.17. The Committee thus held that the ban violates the applicants’ right to non-discrimination. See id. at para. 8.17.
The Human Rights Committee held that both applicants are entitled to an effective remedy, including financial compensation, for the harms suffered. See id. at para. 10. The Committee also recommended that France review Act No. 2010-1192 in light of France’s obligations under the ICCPR. See id. at para. 11. The Committee requested that France provide it with information about the steps that France has taken to comply with the views in the opinions within 180 days of the date they were issued. See id. at para. 11.
Concurrences & Dissents
Both decisions had two concurrences and two dissents. In the first concurring opinions of each decision, five Committee members expressed some acceptance of the State’s argument that full-face veils may perpetuate gender inequality, but concluded that the State had not shown that a blanket ban imposing criminal sanctions is an appropriate method of addressing this concern, as opposed to education or awareness-raising. See, e.g., id. (joint concurrence of Committee members Kehris, Cleveland, Heyns, Kran, and Shany), at paras. 1-4. In the second concurring opinion, two Committee members further observed that France failed to identify a threat to public safety that could not be adequately addressed by France’s previously existing legislation that provided for identity checks at locations such as schools and hospitals, and also raised doubts that any concept of “living together” could be compatible with the rights of minorities. See id. (joint concurring opinion of Committee members Kehris and Cleveland), at paras. 1-2.
In the first dissent, one Committee member argued that the ban is justified by France’s interest in public order, “given the ongoing battle against terrorists, some of whom have carried out attacks and assassinations in France and elsewhere disguised with niqabs.” See id. (dissenting opinion of Committee member Achour), at para. 2. The first dissent also contended that the practice of wearing a niqab is a “symbol of the stigmatization and degrading of women.” See id. (dissenting opinion of Committee member Achour), at para. 3. In the second dissent, another Committee member asserted that the ban was justified on public order grounds, citing the terrorist attacks carried out in France since 2015, and emphasizing the importance of quickly identifying perpetrators. See id. (dissenting opinion of Committee member Pais), at paras. 12-15.
European Court Decision on France’s Ban
In these two cases, the parties and Committee referred to the European Court of Human Rights’ judgment in S.A.S. v. France, in which the European Court concluded that Act No. 2010-1192 did not violate the right to freedom of religion of a practicing Muslim who chose to wear a full-face covering. See id. at paras. 8.1-9. The European Court held in S.A.S. v. France that France’s interest in promoting social cohesion and the concept of “living together” in a diverse society was a legitimate State interest, and that prohibiting full face coverings was necessary and proportionate to meet that interest. [IJRC] Chairperson Yuval Shany noted to IJRC:
unlike the ECHR, which follows a margin of appreciation doctrine, developed in the context of ongoing contacts with judicial institutions in like-minded democratic states, the Committee is applying universal standards across a much more diverse constituency, and regards margin of appreciation in matters relating to the rights of religious minorities as problematic. The decisions of the Committee in the full-body veil cases were informed by the parallel ECHR judgment, and follows to a considerable extent the reasoning of that decision. Ultimately, however, the Committee was not persuaded by a key argument raised by France (‘vivre ensemble’), which the Court regarded as falling within its margin of appreciation. For the Committee this is not a strong enough justification to limit a universal human right (freedom to manifest one’s belief).
More generally, in response to IJRC’s questions, Committee Chairperson Yuval Shany wrote that conflicting decisions do pose difficulties for State compliance and for the development of international human rights law, but on “individual cases, the fact that another human rights body has formed a position on the factual or legal issues at stake [carries] much weight, although such considerations are not and cannot be fully dispositive of the matter.”
For additional examples of complaints involving religious dress restrictions in France, where the ECtHR and Human Rights Committee have reached different conclusions, see IJRC’s prior post on the S.A.S v. France decision.
The Human Rights Committee is the UN treaty body tasked with overseeing the implementation of the ICCPR. The Committee may consider individual complaints that allege a violation of an individual’s rights under the ICCPR if the State is a party to the First Optional Protocol to the ICCPR.
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