February 16, 2011
Although Belgium does not have a general ban on face covering veils like France, a lot of cities do already ban it in practice. This happens through local regulations that sometimes prohibit face-hiding masks, make-up or the like in the public space. An exception to this rule is accorded for the periods of the festivities of carnival.
The municipality of Etterbeek, like most of the municipalities of Brussels, bans the face veil under this “carnival regulation”. In 2009 a Muslim woman wearing a niqab (a veil that leaves only the eyes uncovered) was stopped twice by the police while bringing her children to school. The authorities claimed that a hidden face in the public space could lead to security problems since the identification of a person can only happen via an individual control. The first time the applicant was fined 35 euro and the second time 200 euro, an amount which she refused to pay. She issued proceedings against the municipality of Etterbeek alleging a violation of her right to freedom of religion, especially her freedom to manifest her religion. The applicant won her case in front of a Belgian lower court (Tribunal de Police de Bruxelles, 26 January 2011) which found a violation of article 9 of the ECHR. The municipality of Etterbeek is appealing against the judgment.
The municipality first questioned the religious significance of the wearing of the face veil. Referring to the case of Leyla Şahin of the European Court of Human Rights where the applicant’s decision to wear a headscarf was regarded by the Court as motivated or inspired by a religion, “without deciding whether such decisions are in every case taken to fulfil a religious duty”, the Belgian lower court does not consider it relevant that the face veil is not a practice that is followed unanimously. Consequently, contrary to the municipality of Etterbeek, the Belgian lower court does not question whether the niqab is a manifestation of religion.
The Belgian court observes that the measure is prescribed by law and a legitimate aim – the public safety – is acknowledged. Subsequently, it examines whether the measure – prohibiting the face veil – was necessary in a democratic society. Therefore the lower court examines whether the prohibition to wear a niqab in public is relevant to protect the public safety and whether this measure is proportionate to this aim pursued.
The Belgian court is distinguishing this case from cases of the Strasbourg Court where interferences with the right to freedom of religion were only limited to particular situations like in the cases of El Morsli v. France (identity control at a consulate) and Phull v. France (security control at the airport). Contrary to these cases, the Belgian local “burqa bans” concern the entire public space or in the words of the lower court: “it is the integrality of the freedom to come and go in all the public places of Etterbeek that is erased with the restriction”. Referring to the case of Ahmet Arslan v. Turkey, the Belgian lower court notes that the authorities do not prove that such an intrusive restriction is necessary in a democratic society. The court criticizes the fact that the authorities limit themselves to the argument that there is a need to identify individuals at every time and in the entire public space in order to protect the public order, without justifying this argument. Hence, the judge refers to the fact that a lot of other situations exist where individuals are not identifiable, like in the case of individuals protecting themselves against the cold: “[Q]ue l’on songe notamment aux grands froids récents qui ont amené nombre de citoyens à dissimuler jusqu’ à leur nez sous des cagoules et autres écharpes montantes sans être inquiétés”. Moreover, the fact that the wearing of face covering clothes or masks is allowed during the period of carnival proves that it is possible for the authorities to maintain the public safety even when the face is covered. Finally, the Belgian judge refers to the willingness of the applicant to show her face when needed, e.g. during a police control or in the school of her children for identification purposes. In casu, the conduct of the applicant was not as such endangering the public safety, but it seems that the mere fact that she was walking in the public space was sufficient to fine her without a particular security risk being present.
Following this judgment politicians are urging the parliament to reconsider a general national law prohibiting the face veil in the public space. In 2010 a proposal of law was quasi unanimously approved in the Belgian parliament, but because of the political struggles the proposal did not make it to the Senate. Public safety was one of the arguments parliamentarians were waving with. In a previous post, I argued together with my colleagues Lourdes and Stijn that “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”. The Brussels’ judge seems to agree with us.
(See also: Jogchum Vrielink, Saïla Ouald-Chaib and Eva Brems, “Boete voor dragen gezichtssluier is onwettig”, De Juristenkrant, 9 February 2011)