December 28, 2015
By Eva Brems
In the Grand Chamber judgment of SAS v France (2014) the European Court of Human Rights held that France’s ban on face covering in public could be justified under article 9 ECHR as a proportionate measure for the aim of guaranteeing ‘le vivre ensemble’ (living together). Given the storm of protest that this judgment raised among human rights scholars and activists, it may be of interest to note that the second section of the Court recently communicated two applications against the Belgian face covering ban. Indeed, about one year after France adopted its ban, Belgium did the same. Belgium and France are the only two countries that have adopted a general ban on face covering in public (local or regional bans exist in the Netherlands, Spain, Italy and Switzerland). In Belgium, the nationwide ban was preceded by municipal bans, that continue to be enforced alongside the criminal ban.
While it is unlikely that the Court would overrule a recent and unanimous Grand Chamber judgment, it is not excluded that it might take this opportunity to explain and possibly nuance some of the statements it made in SAS.
The Human Rights Centre of Ghent University submitted a third party intervention in one of the Belgian cases.
Belkacemi and Oussar v Belgium (application No 37798/13) concerns two Muslim women who wear/wore the face veil in Belgium. The first applicant is a Belgian national living in the Brussels area. In 2009 she was fined for violating a municipal face covering ban, which she successfully challenged before a police tribunal. Yet after the adoption of the nationwide criminal ban in 2011, she experienced so much pressure that she decided to provisionally stop wearing the face veil. She explains that as a person with family responsibilities she needs to go out of the house, where she could no longer face the fear of being stopped by the police, the stigmatization created by the law, and the high cost of the fines.
The second applicant is a Moroccan national living in Liège. She was fined once, in 2011, in Brussels, on the basis of a municipal face covering ban. After the adoption of the nationwide criminal ban, she decided to not go out in public without her face veil, yet to instead stay at home. She states that this resulted in a considerable reduction of her private and social life.
The applicants invoke articles 3, 8, 9, 10 and 11, both in isolation and in combination with article 14 ECHR. They also invoke article 14 in combination with articles 5 ECHR and 2 of Protocol No 4.
Dakir v Belgium (application No 4619/12) concerns a Belgian woman who was born in 1977 and has been wearing the face veil since she was sixteen. She lives in the Verviers area, where a pre-existing municipal ban on ‘masking’ was adapted in 2008 so as to include Islamic face veils. The applicant’s application for annulment of this provision before the Belgian Council of State was rejected because the Council reasoned that the contested provision was not really new, but simply a specification of the long-standing masking ban, which could therefore not be annulled (in view of the time limit).
This applicant complains that the municipal and nationwide bans violate her Convention rights, more specifically articles 8, 9 and 10, both in isolation and in combination with article 14. She also claims that she did not have an effective remedy before the Council of State (article 13 in combination with articles 8, 9 and 10) and that she did not have access to a court (article 6).
Distinguishing Belgium from France
In the first part of our third party intervention in Dakir (we were not able to submit an intervention in the other case within the time limit), we highlight three specificities of the Belgian face covering ban as compared to the French ban.
The first difference is the combination of municipal bans, entailing administrative fines, with a nationwide criminal ban, entailing criminal fines.
The second difference is the fact that the Belgian ban, as opposed to the French ban, does not include a provision that penalizes a person who forces another to cover her face; it only penalizes the person herself who covers her face. This is remarkable in light of the strong reliance of the Belgian legislator and Constitutional Court on the (erroneous) hypothesis that women who wear a face veil are generally pressured or forced to do so. This may invite the Court to express its opinion on the penalization of victims.
The third difference is that in Belgium, the process leading toward the adoption of the ban was much less elaborate than in France, foregoing in particular the collection of expert opinions, the inclusion of advice on legality and conformity with human rights, and the discussion in both chambers of parliament. The process moreover did not substantially engage with human rights arguments. We develop this theme, because we noted that SAS v France has been highlighted by judges as well as scholars as an example of a ‘procedural turn’ in the Court’s case law. Given the important differences in the quality of procedures leading to similar legislation in France and Belgium, the Belgian face covering cases invite the Court to further explain and develop its procedural quality control of domestic legislation and the way in which this control is linked to the margin of appreciation.
Nuancing the ‘living together’ reasoning
In the second part of our intervention, we analyse the ‘living together’ argument in the Belgian context. After analyzing the mobilization of this argument in the Belgian parliamentary debates, we confront the arguments made in this respect with the findings of our own empirical research among women who wear/wore the face veil in Belgium. The empirical findings reveal the erroneous character of one the assumptions of the Belgian legislator, i.e. that women who wear the face veil are not able to and do not wish to interact with other in society. They also suggest that the ban is counterproductive, as it in fact reduces the social interactions of those women who despite the ban do not wish to go out uncovered (cf. the second applicant in Belkacemi and Oussar).
Noting this gap between the ban’s stated intent and its actual impact on social interaction, and noting also the broader societal context that is characterized by high levels of islamophobia, we then make the case for evidence requirements in the context of human rights restriction. We argue that the crucial need to distinguish between justifiable measures in the general interest and unjustifiable minority harassment requires evidence. It cannot suffice that majority opinion considers that an important general interest is threatened by minority behaviour. This threat, as well as the suitability of the measure to address it, should also be supported by evidence. In this line of reasoning, and assuming that the Court would wish to continue to rely on the ‘living together’ argument in this context, it would have to ask the Belgian government for evidence in support of its claim that the face veil threatens ‘living together’ in Belgium, as well as in support of its claim that the ban is an adequate measure to safeguard or improve ‘living together’.