Would a Niqab and Burqa ban pass the Strasbourg test?

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.

14 thoughts on “Would a Niqab and Burqa ban pass the Strasbourg test?

  1. Because I cannot resist, a little extra addition to what has been written above.

    I find the manner in which the introduction of the ‘Burqa ban’ in the Belgian Penal Code is being defended as protecting gender equality both uncovincing and highly inappropriate. To say the very least.

    How can one truly claim to be protecting the women concerned without identifying, nor consulting them? And how can one truly advocate their equality and freedom by doing exactly what their husbands and fathers are accused of doing: deciding on their behalf what is best for them.

    On a sidenote: on my way back home from work I passed a woman on a bike who had covered her face with a scarf to protect it from the strong wind. If the ban is passed, she will also no longer be allowed to do so…

  2. I like the analysis and concur with your opinion – Lourdes Peroni, Saïla Ouald-Chaib and Stijn Smet.

    I think a complete ban on face-covering veils is completely unnecessary and a violation of the rights of the many women who wear face-covering veils by choice in Belgium, France or any other democratic state that plans to go down that road.

    A complete Niqab and Burqa ban would not survive a challenge before the Strasbourg Court under Article 9 ECHR.

  3. It is possible that the Court takes a more restricting decision due to the different security considerations. In AHMET ARSLAN ET AUTRES c. TURQUIE the people were not wearing face-covering clothing. Clothing was made up of a turban, salvar (baggy “harem” trousers), a tunic and a stick. Covered faces could put some additional weight to the security concern and thus could shift the proportionality test to the approval of the ban. I haven’t heard elaborate security arguments from the government though.

    • I concour with your analysis and the French State council position demonstrates that it is uncertain whether such a ban would be compliant with France’s international obligation.
      Arslan is certainly the most interesting case to rely on in this analysis although as you recall the argument of gender equality was absent of the case and the religious clothing quite different from the burqua. It was however mentioned by the State council.
      It will be interesting to see the position of the Constitutional council on this matter (whether it is via the a priori review or the new priority ruling on a issue of constitutionality). Although the problem is that the council will rule on the basis of the French constitution only.
      May I praise by the way your very interesting blog.
      best
      Peggy

  4. Dear all,

    It is with great intrest that I read this contribution. I am glad to present my compliments to Saïla, my former collegue. I would like to make a few remarks on both the contribution itself, as on the comments posted on this website.

    – all are wondering if the ban would survive a Strassburg ruling. Many doubt so and some make no mistake about it. I quote ‘ontheroadtosucces’: “A complete Niqab and Burqa ban would not survive a challenge before the Strasbourg Court under Article 9 ECHR”. My remarks on this matter:

    It is dangerous and intellectually unfair to make statements without any condition on the interpretation of a human right. In fact, apart from referring to a particular interpretation given by the ECHR, any such statement should be made in the conditional tense. It is up to the ECHR and the ECHR alone to interprete human rights, not to NGO’s like A.I. that mailed a letter to all members of parliament to vote against the ban ‘because it violates art. 9 ECHR’.
    As all, including myself, are very eager to know instead speculating, it would be in the interest of all to deliver the case in question to the Strassbourgh court in order to finally obtain a definitive and authoritative interpretation on how art. 9 relates to a possible Burqa ban. Therefore, the ban must come into enactment and NGO’s as A.I. should put down a complaint in Strassburg against the ban based on article 9. Then and then alone, A.I. and others like ‘ontheroadtosucces’ may unconditionnaly state that any ban ‘is in violation of article 9’.

    Unfortunately some members of our senate have blocked the coming-into-power of the Burka ban for fear of a negative Strassburg verdict. Since when do we fear a ruling by Strassbourgh? Isn’t the ECHR the ‘angel-guardian’ to safeguard individual freedom in perilous times? Both the advocates and the opponents of the burqa ban must be confident in the ECHR’ expertise and instead be eager to hear the ECHR’s opinion on the matter.

    My message thus to all: let the ban pass, file a complaint (you must!) and let justice be done. It will be a test-case that will attract international attention and would end-up in a land-mark decision, be it pro or against a Burka ban.

    For reasons of clarity: my personal and humble opinion, not yet approved by the ECHR and thus relative and conditional, is that the ban would survive a ruling by the ECHR. Two remarks to illustrate my opinion: the Burqa or Niqab are not religious obligations under Islam, so a ban would not hinder Muslims in the profession of their fate. Moreover, the ban is edited in an areligious way, it merely prohibits face-veiling clothing for all, with no regard for sexe nor religion, and is motivated on grounds of public safety. Explain me how this could possibly violate article 9 ECHR, taking into acount § 2 of the same article? This was also the opinion of the Belgian parliament, even of the green party and the socialist party. The ban was passed unanimously in the first chamber, with only two abstentions from socialist MP’s.

    Thank you for your attention, and once again my sincere compliments to Saila. You have become an incredible researcher, congratulations!

    A good day to you all and if you have any remarks, please mail me on my hotmail account

    • I agree that an important aspect in the test at Strasbourg could be the meaning of the veil – is it a requirement from the God? The last commentator mentions that it is not. Then it is contary to the qoute from the case of Dahlab v. Switzerland, where the Court had stated that the wearing of the headscarf “appears to be imposed on women by a precept which is laid down in the Koran (…)”. What exactly is in the Koran then? And is it possible that it is in the Koran and women can decide to wear it purely due to their beliefs in Allah and solely for Allah?

  5. This ban is a lame excuse of the lawmakers who try to gather right wing voters.
    For certain it will not contribute to liberate women who are forced to wear a
    face veil. They will lose the rest of their freedom because they will not be able
    to leave to house anymore.
    It will also not support integration because the rest of the muslim women, who
    just wear a headscarf will be further stigmatized for being “something else”

  6. I am a law student writing my thesis on the burqa ban and the position of veiled woman in Europe from a Human Rights perspective. I was wondering if this rising of an anti-burqa ban sentiment across European states ( at least seen on governemental and media level..) will lead to a ‘pan-European consensus’ that will be recognized by the Court. A general consensus normally will go hand in hand with a more narrow margin of appreciation for the states , but what if the European Court disagrees with this pan European consensus ?

  7. […] The Constitutional Court’s judgment reflects a lack of balancing of the interests at stake. The arguments made by the legislator are easily accepted without a thorough proportionality analysis. The analysis of the safety argument is based on hypothetical situations and questions. If women wearing the face veil would refuse to identify themselves and if they would commit crimes with their face covered this would entail a risk for the public safety, according to the CC. Although it can be accepted that states have to take precautions in order to protect the safety, the rights of the persons concerned must still be genuinely taken into account. The question that could have been asked by the CC is: does the aim of public safety justify a general ban on the covering of the face (with for example face veils) every time and in all public places? Could the ban not be limited to places with a higher safety risk? If security was the real issue here, is there not an alternative measure that would limit the rights of the persons concerned in a less restrictive way? (Compare with the European Court of Human Rights’ reasoning in the case of Arslan v. Turkey discussed here and here) […]

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