May 04, 2010
By Lourdes Peroni, Saïla Ouald-Chaib and Stijn Smet
Whether it is a Burqa or a Niqab, what is at stake is a face-covering veil. This veil is increasingly becoming the subject of heated discussion within Europe. In France, a bill that aims to prohibit its wearing is the subject of a national debate. Also at the level of the European Union certain members of the European Parliament are calling for a general ban on the wearing of face-covering veils.
In this context, the Belgian Chamber of Representatives recently passed an amendment to its Penal Code prohibiting the wearing of clothes that “completely or largely cover the face” and thus became the first European country to introduce what is popularly referred to as the Burqa ban. Although the Chamber of Representatives already approved it with near unanimity (136 votes in favor, two abstentions), the law is not yet definitive as it requires approval by the Senate (which will only discuss the proposed bill after the upcoming federal elections). Despite the fact that the proposed new article of the Belgian Penal Code does not mention the words Burqa or Niqab, and is thus neutral on its face, the Parliamentary discussions clearly show that the mentioned face-covering veils were the intended target of the new provision. If passed by the Senate under its current form, the ban would apply in all public spaces, including streets, parks, shops, public transport, airports, banks, and, of course, public buildings. An exception is introduced for certain cases, including for festivities such as carnival, in which the wearing of face-covering clothing remains allowed. Whoever violates the new law risks a fine of around € 100 and/or a prison sentence of 1 to 7 days. Rationales put forward for the ban include ‘security reasons,’ ‘public order,’ and ‘the protection of the dignity of women and gender equality’.
In this post we would like to analyze the Belgian ‘Burqa ban’ from the angle of the jurisprudence of the European Court of Human Rights.
In a previous post, Lourdes already commented on the Court’s ruling in Ahmet Arslan and others v. Turkey (see “Religion and the Public Space”). Would a general ban on the wearing of face-covering veils in the public space, such as the one introduced in Belgium, survive a challenge before the Strasbourg Court under Article 9 ECHR? We believe it should not. In Ahmet Arslan and others v. Turkey the Court clearly indicated that the reasoning developed in Leyla Sahin v. Turkey and Dahlab v. Switzerland on the wearing of the headscarf in public institutions does not apply in cases involving restrictions on the wearing of religious attire in the public space. The Court consequently left less room for restrictions in open public areas and ruled that the limitations imposed on the followers of a religious minority, who were sanctioned for wearing their religious attire in the streets, were not proportionate to the legitimate aims (inter alia public safety and public order) pursued by the Turkish authorities. The freedom of religion of the members of the group had thus been violated. Despite the fact that the circumstances surrounding the Belgian ‘Burqa ban’ are not identical to those in Ahmet Arslan (the Belgian Parliament invoking the need to identify individuals’ faces as the core of the security argument), the indiscriminate application of a ban in all public areas strikes us as being disproportionate to the aim pursued, especially in light of the far-reaching implications it has for individuals to express their religious beliefs.
It must also be noted that in Ahmet Arslan the Court was not confronted with the gender argument relied on by the Belgian Parliament. Bearing in mind the Court’s questionable opinion on the headscarf (see for instance its statement in Dahlab v. Switzerland that the wearing of the headscarf “appears to be imposed on women by a precept which is laid down in the Koran and which […] is hard to square with the principle of gender equality”), a possible Court ruling on the Belgian ‘Burqa ban’ might turn out differently from the conclusions reached in Ahmet Arslan. However, important issues also need to be addressed here. One may question whether a ban is a good way to improve the integration of these women in society and wonder how imposing a ban contributes to their liberty.