July 03, 2014
By Saïla Ouald Chaib and Lourdes Peroni
This week, the Grand Chamber of the European Court of Human Rights published its long-expected judgment in S.A.S. v. France. The case concerns a ban on the wearing of face veils in the public space. Although the outcome of such highly debated cases is always unpredictable, we hoped that the Court would take this opportunity to bring procedural and substantive justice to the women wearing a face veil in Europe. Alas, the Court disappointingly decided the case by granting a wide margin of appreciation to France and by consequently not finding a violation of any of the ECHR provisions invoked, in particular freedom of religion, the right to private life and non-discrimination. At the same time, however, the judgment contains some positive aspects, namely respect for several requirements of what is known as “procedural justice” and departure from previous case law portraying Muslim women as oppressed. In this post, we share our first impressions on what we think are some positive and negative aspects of the Court’s reasoning.
Facts and Judgment in Short
On 11 April 2011, S.A.S., a French woman wearing a face veil, lodged a complaint against the French ban “prohibiting the concealment of one’s face in public places” (also popularly called the “burqa” ban). The applicant does not always wear the face veil but wishes to be able to do so when she feels the need for spiritual reasons. She accepts to remove her face veil when necessary for identity checks. Before the European Court of Human Rights, she claims that the French law violates articles 3, 8, 9, 10, 11 and 14 of the Convention. Several third parties intervened in the case, namely Article 19, Open Society Foundation, Amnesty International, Liberty and the Ghent Human Rights Centre. The government of Belgium, the only other country in Europe that voted a face veil ban, was also allowed to intervene.
The Court’s Grand Chamber focuses its reasoning on article 9 together with article 8, accepting that “personal choices as to an individual’s desired appearance, whether in public or in private places, relate to the expression of his or her personality and thus fall within the notion of private life” (para. 107). The French government argued that the ban imposed by the law aims (1) to protect public safety and (2) to ensure “respect for the minimum set of values of an open and democratic society”. The latter comprises gender equality, the protection of human dignity and “respect of the minimum requirements of life in society” – also named “le vivre ensemble”.
In short, by fifteen votes to two, the Court finds that the blanket ban is unnecessary for the protection of public safety, especially because less restrictive alternatives are available (e.g., requesting to show the face in particular situations). However, as to the second aim invoked, the Court only retained the aim of “vivre ensemble” and decides that the way in which a country organizes society falls within a wide margin of appreciation, which consequently led to not finding a violation of the Convention.
This judgment at first sight shows a much more balanced and careful reasoning than what we are used to in cases concerning the right to manifest a religion. Two positive aspects have caught our attention: the Court’s gender equality language and the Court’s embracement of some aspects of procedural justice.
Gender Equality: Au revoir Dahlab and Leyla Şahin
One of the most noteworthy aspects is the Court’s explicit departure from its highly criticized stance towards the practice of wearing religious garment by Muslim women. In Dahlab, and as reiterated in Leyla Sahin, the Court (in)famously stated: “the wearing of a 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” and that it “appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination” (p. 13).
In S.A.S., however, where the French authorities raised the same gender equality argument, the Court refused to accept it as a legitimate aim:
119. … a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms.
The protection of human dignity is similarly rejected as a legitimate aim by the Court. The Court states that it “is aware that the clothing in question is perceived as strange by many of those who observe it. It would point out, however, that it is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy” (para. 120).
The Court thus respects the applicant’s autonomy and refrains from attributing a meaning to the way she is dressed and the religion she professes. At the same time, the Court also clearly gives a message that the society cannot impose its view on a particular religious dress on the women concerned.
Another positive aspect of the Court’s reasoning is its effort to integrate several aspects of procedural justice. Briefly put, procedural justice refers to the fairness of the procedures by which a decision is taken. It requires, among other things, that those involved are treated respectfully and given voice in the process. In S.A.S., the Court does what the domestic legislators and judges did not. It respects the applicant as an autonomous human being. It gives her a voice and listens to her point of view and to her arguments. It considers what is at stake for her in the case.
For example, in finding that the blanket ban is disproportionate to the aim of ensuring public safety, the Court recognizes the effects the ban might have on the applicant:
139. As to the women concerned, they are thus obliged to give up completely an element of their identity that they consider important, together with their chosen manner of manifesting their religion or beliefs …
And, in its examination of whether the ban is proportionate to the aim of “vivre ensemble” the Court states that:
146. … there is no doubt that the ban has a significant negative impact on the situation of women who, like the applicant, have chosen to wear the full-face veil for reasons related to their beliefs. As stated previously, they are thus confronted with a complex dilemma, and the ban may have the effect of isolating them and restricting their autonomy, as well as impairing the exercise of their freedom to manifest their beliefs and their right to respect for their private life. It is also understandable that the women concerned may perceive the ban as a threat to their identity.
On the sanction imposed by the ban, the Court shows understanding towards the trauma women wearing the face veil will experience as a result of criminal sanctions:
152. … It is certainly understandable that the idea of being prosecuted for concealing one’s face in a public place is traumatising for women who have chosen to wear the full-face veil for reasons related to their beliefs.
It is thus clear that the Court in this case does acknowledge the harm done to Muslim women by this law, contrary to the public debate and contrary to its previous case law concerning the wearing of religious clothing by women, be it by pupils or by teachers.
Another important element in the judgment is that the Court expresses its concern about the Islamophobic remarks preceding the adoption of the law and warns of the “the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, when it has a duty, on the contrary, to promote tolerance” and further reiterates “that remarks which constitute a general, vehement attack on a religious or ethnic group are incompatible with the values of tolerance, social peace and non-discrimination which underlie the Convention and do not fall within the right to freedom of expression that it protects” (para. 149). The Court also tries to acknowledge the broader impact of this legislation on the Muslim community “including some members who are not in favour of the full-face veil being worn” (para. 148). The concern of the many human rights organisations about the disproportionate character of the ban is also mentioned.
All this shows that the Court wants to offer a voice to all parties touched by the ban and shows understanding of the harm inflicted by such a ban, both on the individual persons concerned and on some segments of society. As we stated in our third party intervention, this case gave the Court the opportunity to apply procedural justice, meaning to make a decision based on accurate information, to take the voice of the women concerned into account, and to take their arguments and rights seriously. The Court seems to have done this to some extent and it should be applauded for this.
At the same time, however, the Court falls short of offering substantive justice. The main negative aspect of the S.A.S. reasoning is the way in which the Court deals with both the legitimacy and the proportionality of the “vivre ensemble” aim.
“Vivre ensemble”: Legitimacy of the Aim
One of the French government’s justifications for the ban was respect for the minimum set of values of an open and democratic society. This aim included respect for the minimum requirements of “living together.” Though not recognized as a ground of limitation in the ECHR, the Court accepted it as part of the “protection of the rights and freedoms of others” (para. 121).
Unlike its gender equality and human dignity companions, the “living together” claim survives as a legitimate aim: “The Court is … able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier” (para. 122). “Living together,” however, survives as a legitimate aim just barely, as the Court expresses doubts about its nature. The Court admits that the notion is flexible and risks abuse (para. 122). It therefore announces that it will engage “in a careful examination of the necessity of the impugned limitation” (para. 122).
The fact that the Court accepts the legitimacy of the “living together” aim despite the acknowledged pitfalls is puzzling if one takes seriously the Court’s previously stated principle: “the enumeration of the exceptions to the individual’s freedom to manifest his or her religion or beliefs, as listed in Article 9 § 2, is exhaustive and that their definition is restrictive” (para. 113). See also dissent paras. 3-12.
Moreover, the “careful examination” announcement remains an announcement, as later in the analysis the Court applies a wide margin of appreciation. As has been argued elsewhere in the blogosphere, it is hard to reconcile this need for “careful examination” with the wide margin of appreciation ultimately granted in the case (we briefly discuss the margin in the next section).
“Vivre ensemble”: Proportionality
In examining whether the ban was necessary to ensure respect for the minimum requirements of life in society, the Court first of all accepts that it is fine for the State to (1) give particular weight to the interaction between individuals and (2) consider this interaction to be “adversely affected by the fact that some conceal their faces in public places” (para. 141). The conclusion is that the ban can be regarded as justified “solely in so far as it seeks to guarantee the conditions of ‘living together’” (para. 142).
The next issue addressed by the Court is whether the ban is proportionate to this aim. As we mentioned earlier, the Court recognizes several of the implications the ban has for those affected. It acknowledges “the significant negative impact” on women wearing the face veil and accepts that they might perceive the ban as a threat to their identity (para. 146). It admits that the ban “may have upset part of the Muslim community” (para. 148). In this connection, it shows concern about indications that “certain Islamophobic remarks marked the debate” preceding the ban (para. 149). The Court also recognizes that a blanket ban may be an “excessive” response given the estimated small amount of women wearing the full veil in France (para. 145).
At this point, some may wonder what exactly has made the Court go for a no violation, as all these elements seem to point to a violation. There are three sets of considerations the Court relies on to go in the “no violation” direction. They can be roughly grouped as follows: (1) the blanket ban was ultimately not so blanket and not expressly based on the religious connotation of the clothing in question (para. 151); (2) the criminal sanctions may increase the impact on those concerned but they are among the lightest sanctions they can get (para. 152); and (3) the ban may restrict pluralism to a certain extent but the decision, being a “choice of society”, calls for a wide margin of appreciation (paras. 153-155).
(1) Breadth of the ban
The Court first admits that the scope of the ban is broad because it concerns all places accessible to the public. Then, however, it implies that the ban is not so broad given the limited item of clothing it targets: only face-concealing clothing as opposed to any (religious) clothing (para. 151). All of a sudden, the blanket ban does not seem so blanket because the vast majority of the (religious) population can still wear any other (religious) clothing without being affected. This is problematic because the fact remains that the ban is blanket for all those who fall under its scope, even when the group may be a small minority.
(2) Lightness of the sanctions
The Court finds the sanctions envisaged by the law – fine of max 150 Euros and citizenship course – “among the lightest.” But the dissenters show that the light character of the sanctions is not so straightforward: “where the wearing of the full-face veil is a recurrent practice, the multiple effect of successive penalties has to be taken into account” (para. 22).
(3) Wide margin of appreciation
After stating that allowing or not to wear the full-face veil in public places constitutes “a choice of society,” the Court holds:
154. In such circumstances, the Court has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question.
The application of the wide margin of appreciation in S.A.S. raises several concerns. There is, as discussed more fully in EJIL Talk!, the issue of inherent incompatibility of “careful examination” and “wide margin of appreciation.” But this is not the only objection one can raise. Another concern relates precisely to the kind of the democratic process leading to the ban. Once the Court signaled a concern over Islamophobic remarks made during the preceding debates, it should have been more careful in its scrutiny or even followed its own approach in the group-vulnerability case law – i.e. narrowing the margin of appreciation because the prohibition affects a group vulnerable to prejudice and stereotyping (e.g., Alajos Kiss v. Hungary, para. 42). Moreover, the Court debatably states that the ban is not based on any religious connotation “but solely on the fact that it conceals the face” (para. 151). This begs the question: if the ban was not about religion, why would the Court follow the wide margin used in principle “where questions concerning the relationship between State and religions are at stake” (paras. 129, 154 and 155)? (see dissent, para. 18)
In any event, even if the Court accepts that there may be other grounds for a wide margin of appreciation and that there is a legitimate aim for the interference, it should do at least some control of whether the competing interests at stake have been balanced at the domestic level. This is all the more important when norms affect unpopular and vulnerable minorities, such as the one the applicant belongs to. The well-known reason for this is that the processes resulting in these norms are likely to either overlook what is at stake for them or, even worse, be tainted by prejudice towards them.
Despite the positive aspects of the S.A.S. judgment, the Court’s reluctance to do a meaningful control of the restriction on the applicant’s religious and private life rights is worrisome. The lack of effective review is especially striking given the Court’s own doubts about the legitimacy of the “living together” aim and its concern over indications of prejudiced remarks in the debates preceding the ban.
In order to do full justice to the applicant and other women concerned, the Court should have been consequent. It should have not only pointed out the convincing reasons why the ban is problematic but also lived up to these findings. Organizing diversity is indeed one area where the society concerned is best placed to decide. However, as the dissenting judges argue, “it still remains the task of the Court to protect small minorities against disproportionate interferences” (para. 20).
 See the text of the 3rd party intervention submitted by the Human Rights Centre of Ghent University in this case.
Law no. 2010-1192 of 11 October 2010. Entered into force on 11 April 2011.
 See e.g. Tyler, Tom R., “Procedural Justice and the Courts”, Court Review, 44(1/2) (2008).
See Ouald Chaib and Brems, Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe, 2013.
 We say debatably because the ban was not “solely” about concealing one’s face but also about Muslim women veiling their faces for religious reasons. This is clear from the wording of the explanatory memorandum accompanying the Bill (para. 25 of S.A.S. judgment).
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