On July 1, 2014, Grand Chamber judgment in the case of S.A.S v. France, the European Court of Human Rights held that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, and no violation of Article 9 (right to respect for freedom of thought, conscience and religion). Further, the Court found no violation of Article 14 (prohibition of discrimination) of the European Convention combined with Articles 8 or 9.
The case concerned the French law, which was entered into force on April 11, 2011, prohibiting the concealment of one’s face in public places. The plaintiff is a French national, who is a practicing Muslim, and she complained that she is no longer allowed to wear the full-face veil in public following the enforcement of the subject law. In her complaint, the plaintiff explained that she is a devout Muslim, and in her submissions, she said that she wore the burqa and niqab in accordance with her religious faith, culture, and personal convictions. She further explained that her aim was not to annoy others in public but to feel at inner peace with herself.
In its final judgment, Grand Chamber emphasized that the preservation of the conditions of “living together” was a legitimate aim for the law at issue, and the ban could be regarded as proportionate considering the policy behind. In explaining in what context such law would be “proportionate,” the Court focused on two legitimate aims listed in Article 8 (public safety) and Article 9 (protection of the rights and freedom of others).
The Court recognized that there had been a “continuing interference” with the exercise of the applicant’s rights under Articles 8 and 9 since the law forces the applicant either to comply with the ban and thus refrained from dressing in accordance with her religious beliefs or refuse to comply with the ban and face criminal sanctions. In view of the impact of the law on the rights of women who wish to wear the full-face veil for religious reasons, the Court pointed out a blanket ban on the wearing full-face veil designed to conceal one’s face could be regarded as proportionate only in the context of general threat to public safety. While the Court was aware that the ban mainly affected certain Muslim women, it nevertheless found no restriction on the freedom to wear in public any item of clothing, which did not have the effect of concealing the full face and that the ban was not expressly based on the religious connotation of the clothing but solely on the fact that that it concealed the face.
Do you agree with the Grand Chamber’s judgment? Where do you think we should draw the line between public safety and one’s right to exercise religion? Do you think the French ban is discriminatory on its face or as applied? Why do you think the ECHR focused heavily on “general threat to public safety” rather than one’s freedom to wear whatever she chooses?
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I do not agree with the Grand Chamber’s decision. Although I believe that there should be some consideration for the “general threat to public safety,” I do think that individual rights and freedoms cannot be ignored.
The Court in its own decision acknowledged a “continuing interference” with the exercise of the applicant’s rights under Articles 8 and 9. It recognized an impact on the right to respect private life and the right to thought, conscience and religion. However, the Court chose to focus primarily on general public safety.
To me, this is a case of pure discrimination. This law bans women from wearing their burqa and niqab in public. Not only does this law discriminate against women, it discriminates against Muslim women. Further, I do not see a coherent connection between burqas and threat to public safety.
Concealing one’s face may make identifying people more difficult, but there is no reason why a burqa and niqab cannot be part of the identification. However, there is no connection between wearing a burqa and niqab and criminal activity. This law is per se criminalizing all women who choose to wear it. This in it of itself is ludicrous. The Grand Chamber’s decision too is therefore erroneous.
I find this Grand Chamber ruling to be particularly troubling. It is sad that in today’s day in age, this is such a great concern for public safety and security, many other things, such as rich, cultural traditions are taking a back seat. It is clear that the plaintiff in this case, like so many others similarly situated, are in no way any threat to public safety. The wearing of burqa and niaqb has been a long practiced tradition, which is now being halted. I would have to say that I think that this ban is discriminatory as applied. I really think the French ban with the creation of an exception for religious headdresses.
Although the court found that thee was no restriction on the freedom to wear in public any item of clothing, I am surprised that they did not find a violation of an individual’s rights to practice their religion. I would be curious to know why that was not at issue here.