July 25, 2017
By Marcella Ferri, Adjunct Professor of International Human Rights Law – ASERI, Catholic University of the Sacred Heart, Milan (Italy), and Adjunct Professor of Institutions of Comparative and European Law – module of European Law – University of Bergamo, Bergamo (Italy)
On 11 July 2017, the European Court of Human Rights delivered two similar judgments in the Belkacemi and Oussar v. Belgium and Dakir v. Belgium cases, both concerning the Belgian burqa ban. On 1 June 2011, the Belgian Chamber of Representatives approved a Law criminalising the wearing in public spaces of clothing which partially or totally covers the face. Before the adoption of this Law, the wearing of full-face veils was prohibited by several municipal bans, imposing administrative fines, which have been kept in place by the national ban.
Unsurprisingly, the European Court does not overrule the Grand Chamber decision on the French burqa ban (S.A.S. v. France). However, in deciding the Belgian cases, the Court could have seized the opportunity to “nuance” the implications of S.A.S., as heavily called for by Professor Brems. This was particularly required in the light of several differences which, as pointed out by Human Rights Centre of the Ghent University in its third-party intervention in Dakir, exist between the Belgian and the French ban. On the contrary, as explicitly declared by the Court itself, it refers «to a large extent» (Dakir, para.46) to S.A.S., and it does not abandon in any way its restrictive approach.
Facts and Judgements in short
While in both cases the applicants contested the face covering ban, the specific facts are partially different. In Belkacemi and Oussar, both applicants (a Belgian national and a Moroccan national) were fined based on a municipal face covering ban; after the enactment of the national ban, they filed an application for suspension and annulment of the Law with the Belgian Constitutional Court which, however, dismissed their cases. In Dakir, the case originates from the decision of three Belgian municipalities to adapt a pre-exiting municipal by-law by inserting a specific provision which prohibits the face covering. The applicant (a Belgian national) submitted to the Conseil d’Etat an application for annulment of this provision, which was rejected for failure to comply with an admissibility condition.
On the basis of reasoning that, with few exceptions, is nearly identical in both judgments, the Court holds that the challenged ban neither breaches the right to respect for private life (Article 8) nor the freedom of thought, conscience and religion (Article 9).
According to the travaux préparatoires of the Law of 1 June 2011, it aims to assure public safety, gender equality and a certain conception of “living together” in society. In accordance with S.A.S., the Court only analyses the issue at stake in relation to the latter objective, and it qualifies the necessity to assure the minimum condition of life in society as contributing to the legitimate aim of the protection of the rights and freedom of others (Article 9.2).
Leaving a wide margin of appreciation to the national authorities, the Court holds that the decision on whether or not to prohibit the wearing of full-face veil in public places is «a choice of society». The contested Law aims to protect a form of interaction which, according to Belgian authorities, is necessary to assure the functioning of a democratic society. Indeed, in their view, it concerns a practice incompatible with «the modalities of social communication, and more generally the establishment of human relations indispensable for life in society» (Belkacemi and Oussar, para.53; Dakir, para.56). In the light of this, the Court finds no violation of either Article 8 or Article 9 of the European Convention.
The following paragraphs focus on two critical aspects characterising the Belkacemi and Oussar and Dakir judgements. The first element lies in the limitations affecting the necessity test made by the Court in these decisions, and it specifically concerns the Belgian cases. The second aspect deals with the specific notion of religious pluralism: the two commented decisions further confirm that, in its case law on headscarf and especially on full-face veil, the Court tends to adopt a concept of religious pluralism which is extremely different from that of ideological and cultural pluralism.
(i) The limitations of the necessity test: the excessive wide margin of appreciation, and the almost non-existent proportionality assessment
In S.A.S., the Court itself recognised that the concept of living together is marked by a strong «flexibility […] and the resulting risk of abuse»; consequently «the Court must engage in a careful examination of the necessity of the impugned limitation» (para.122). Nonetheless, the necessity test, which already in S.A.S. was far from rigorous, causes even more concerns in Belkacemi and Oussar and Dakir. The limitations affecting the necessity test stem from two different, deeply connected, elements: the wide margin of appreciation granted to Belgium by the European Court, and the almost non-existent assessment of proportionality.
As to the first aspect, it is worth recalling that, the S.A.S. judgement exemplifies the actual tendency of the European Court towards paying more attention to the quality of the national process (among others, Judge Robert Spano). Against this background, when the contested measure is the outcome of a procedure meeting certain democratic criteria, the Court tends to recognise a wider margin of appreciation. Similar to S.A.S., in the Belgian cases, the Court pointed out the necessity to limits its review on the Belgian Law in the light of the democratic process which led to its adoption (para.57).
While the process leading to the adoption of the Belgian face covering ban has taken several years, and has been characterized by a comprehensive debate, the actual democratic nature of this process is broadly questionable. As pointed out by the Human Rights Centre in its third-party intervention, this procedure was significantly less elaborate than the French one. In the light of these differences, in the Belgian cases, the Court should have taken the opportunity to specify the criteria that must be met by a democratic process. In particular, a great deal of attention should have been given to the fact that the restrictive measure specifically affects a marginalized minority group, and to the consequent necessity to duly take into account their opinion. More generally, when the contested measure affects in a significant way a minority community, the Court should be particularly cautious in recognising a wide margin of appreciation, because it risks compromising its role to protect minorities against the abuses of the majority (see, among other, Benvenisti).
Even if the Court grants a wide margin of appreciation, it should verify if the contested measure is proportionate to the legitimate aim: to this end, it should consider the concrete consequences of the ban, by giving special attention to persons affected.
On the contrary, in Belkacemi and Oussar and Dakir, this assessment is limited to the fact that the impugned ban can increase stereotypes concerning Muslims and restrict the reach of pluralism. Differently to Dakir, in Belkacemi and Oussar, the Court makes also reference to the sanctions provided for by the Belgian Law, and points out that the imprisonment is only applied in the event of a repeat offence, the main sanction normally consisting of a fine, i.e. the lightest penalty. However, the Court forgets that, as highlighted by the dissenters in S.A.S. «where the wearing of the full-face veil is a recurrent practice, the multiple effect of successive penalties must be taken into account» (para.22); in other words, the event of a repeat offence, and the consequent imprisonment envisaged by the Belgian Law, takes on another – and extremely serious – relevance.
As remarked in an interesting post, one of the few positive aspects of S.A.S. is represented by the procedural justice approach adopted: indeed, the Court recognised, to some extent, the harmful effects for Muslim women, and considered it in the overall evaluation of proportionality. Contrarily, neither in Dakir nor in Belkacemi and Oussar, the Court gives any attention to the concrete impact of the ban on women wearing the full-face veil, and consequently it abandons completely the procedural justice approach. Moreover, as pointed out by the Human Rights Centre in its third-party intervention, empirical findings show that, following a face covering ban, several Muslim women decided to limit in a significant way their social life; despite that, the Court completely ignores how seriously the ban affects the concrete chances for Muslim women to “live together”.
(ii) The different (and subordinate) status of religious pluralism
On several occasions, the European Court of Human Rights has stressed the importance of pluralism, which is conceived as a critical condition for and an essential foundation of a democratic society. The analysis of case law on ideological-political pluralism, and to some extent, on cultural pluralism, shows that the Court has elaborated a notion of pluralism able to protect and safeguard also views and opinions diverging from the mainstream and the majority stance.
As to freedom of expression, since the Handyside decision in 1976, the Court highlighted that Article 10 protects also ideas and information which «offend, shock or disturb the State or any sector of the population» (para.49). Dealing with freedom of association, it can occur, and even it is the essence of democracy, that a public demonstration «annoy or give offence» to persons having an opposite position (Plattform “Ärzte für das Leben” v. Austria, para.32).
This notion is deeply linked with the protection of minorities. Indeed, as stressed by the Court in the Young, James and Webster case, while under some circumstances individual interests must be subordinated to those of a group, «democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position» (para.63, emphasis added).
The Court has taken a similar position as to political associations and parties demanding constitutional or territorial changes and challenging the actual structure of States (among others, United Communist Party et al. v. Turkey, Socialist Party et al. v. Turkey, Yazar et al. v. Turkey, and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria). As stressed by the Court, the essence of democracy lies in its possibility to discuss and resolve problems through dialogue and open debate, even when these problems are «irksome». Except in cases where the means used are not legal or democratic or where proposals put forward are incompatible with democratic principles, all political stances and ideas should deserve to be expressed and introduced into public debate, even if they challenge the existing State structures and «clash with the main strands of government policy or the convictions of the majority of the public» (Yazar et al. v. Turkey, para.58).
A similar stance can be detected with respect to cultural pluralism. While the European Convention does not enshrine any specific provision on cultural identity, in the European Court’s case law it is possible to find some references to the protection of cultural diversity and cultural identity. It is worth recalling the Chapman et al. v. the United Kingdom, where the Court stressed that «although the fact of belonging to a minority with a traditional lifestyle different from that of the majority does not confer an immunity from general laws […] some special consideration should be given to their needs and their different lifestyle» (para.96).
Quite strangely, the necessity to protect minority cultural identities emerges in S.A.S. too. Differently to the two commented Belgian cases, in S.A.S. the Court examined the freedom to wear religious clothing by considering its cultural dimension too. While the Court ruled out the thesis, submitted by the French government, that the wearing of the full-face veil would violate other people’s dignity, the Court recognised the strange nature ascribable to this kind of clothing. However, it pointed out that this difference «is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy» (para.120).
The foregoing analysis shows the positive attitude taken by the Court towards both ideological-political positions and, to some extent, cultural identities diverging from the mainstream. Their “strangeness” and their consequent minority support, does not imply their exclusion from the public arena. On the contrary, the essence of pluralism implies that they must have the possibility to be expressed and introduced into the public sphere.
In S.A.S., in Dakir and in Belkacemi and Oussar, the Court have conceived religious pluralism in a «selective» (S.A.S., dissenters, para.14) and restrictive manner, which is exactly the opposite. The notion of religious pluralism, adopted by the Court, finds its limit in those religious expressions incompatible with the conditions of living together, social communication and interindividual interaction. However, these conditions are, by definition, set out by the majority. As underlined by Judge Spano in his concurring opinion in Dakir and Belkacemi and Oussar, «il existe une grande proximité conceptuelle entre le principe du “vivre ensemble” et le majoritarisme » (para.7).
Unlike the notion of ideological-political pluralism, and to some extent, of cultural pluralism, which are minority-friendly, the concept of religious pluralism, adopted by the Court, thus seemingly only embraces religious manifestations to the extent that they do not “offend, shock or disturb” the majority population.
Based on the foregoing analysis, it is possible to underline that in the Belgian case, the Court fails to seize the opportunity to specify the principles elaborated in S.A.S. In particular, the Court seems to ignore completely that, in the light of the vagueness of “living together”, the necessity test should be conducted in a “careful” way (S.A.S., para.122): first, it recognises a wide margin of appreciation which, among other things, does not consider the specificities of the Belgian ban; and second, it does not pay any attention to the impact of the ban on Muslim women, and in doing so, it abandons the procedural justice approach.
From another point of view, the Belgian case confirm the Court’s trend to adopt a notion of religious pluralism which, contrary to ideological and cultural pluralism, only embraces religious expressions compatible with the social interaction modalities defined by the majority; in other words, the Court holds that the reach of religious pluralism is a «choice of society»: a choice made by the majority.
 In Belkacemi and Oussar, the applicants claimed also a violation of Articles 3, 5.1, 10, 11, and 2 of Protocol No. 4, taken separately or together with Article 14. The Court holds that there has been no violation of Article 14, taken together with Articles 8 and 9; it finds no specific issue arises under Article 10, and the other complaints manifestly ill-founded. In Dakir, the applicant complained a violation of Articles 8, 9, and 10, taken separately or together with Article 14, and a violation of Articles 6.1 and 13 as well. Similar to Belkacemi and Oussar, the Court holds that there has been no violation of Article 14, taken together with Articles 8 and 9, and finds that no specific issue arises under Article 10. However, it recognises the existence of a violation of Article 6.1.