April 30, 2020
In February, not long before we all went in lockdown, I attended an event with civil society organisations in Brussels concerning litigation and advocacy strategies. One of the organizers approached me as she recognized my name from the Strasbourg Observers blog and she explained how the series we published on the case of S.A.S. v. France helped her to understand the case more deeply. Little did my colleagues and I realize, I thought, how broad our readership would become, when we enthusiastically founded the Strasbourg Observers blog 10 years ago. A readership, which includes scholars, practitioners and civil society organisations. I am very grateful for that and for the work of my colleagues who are keeping the blog going these days.
Not long after that encounter, I was asked by my colleague Claire Poppelwell to write a reflection on the post I co-authored with dr. Lourdes Peroni on the S.A.S. case back in 2014. This commitment took me on a trip down memory lane, especially since we were involved in this case as a third-party intervener. In this post, I take the opportunity to reflect on this (learning) experience. I will also illustrate the broader impact of this case. Finally, in a time where face coverings are becoming the new ‘normal’, I will also share some thoughts on this case from a Covid-19 perspective.
The value of third party interventions
The Grand Chamber judgment was for me at that time a closure of my PhD research, since it was the last Article 9 judgment I analysed for my thesis. It meant also the closure of a research project on the Belgian ban on the wearing of face veils that I have undertaken with prof. Eva Brems and prof. Jogchum Vrielink in parallel to my own PhD project. Witnessing the absurd debates on face veiled women in Belgium – where the parliament was preparing a law to ban the wearing of face veils in public places – we decided to conduct empirical research for which we interviewed face veiled women in Belgium. We wanted to learn about their side of the story and to hear their perspective on a possible ban. We made our research results public in the hope that decisions would be taken and opinions would be formed based on facts and not based on prejudices. In the end, the so-called burqa ban was voted almost unanimously. Only one Member of Parliament voted against the ban: prof. Eva Brems, who at that time also happened to be an MP in the Federal Parliament. Our research was driven by the will of bringing forward facts, in a context where public debates were fueled with prejudices. You might think that this was quite naive. In hindsight, it was not entirely. Although in Belgium our research findings were not really taken seriously, we took them higher up, to the European Court of Human Rights. When S.A.S. v. France was communicated by the Strasbourg Court, we took our chance to share our research findings with the Court through a third party intervention, in the hope that the Court would take its decision on the basis of facts and not on the basis of prejudices. I think that, together with the other third-party interveners, this is exactly where we partly succeeded with our interventions.
Submitting this third-party intervention was a rich learning experience, which however demanded a lot of work and at times even some crisis management. I remember the day I discovered the Court’s letter in the university mailbox in which we were granted leave to intervene in the case. The only problem was that this letter reached us one day before the Christmas break, meaning that we would not make the submission deadline. Our team turned into crisis management mode, mailing and faxing with the Court in order to get an extension. I also remember our train ride to Strasbourg with my Strasbourg observers colleagues to attend the hearing (at a time in which traveling was still self-evident). We were excited to attend a Grand Chamber hearing, for the first time, especially since this was a case in which we were involved. We witnessed how the parties defended their case (to be honest we would have loved to jump in to plead the case with them), we heard how the judges asked critical questions and afterwards we got to meet the lawyers representing the applicant which gave us more insights in how cases before the ECtHR were built from the applicant’s side. Although we did not necessarily return to Belgium in an optimistic mood about the outcome of the case, we gained one more valuable experience which traditional desk research would not have been able to give us. Finally, after the judgment came out, I also remember the vivid debates and the feeling of confusion we had when reading the text of the judgment. What seemed like a very well structured and thoroughly argued judgment ended in an anti-climax. I think none of us expected a positive outcome, but the way the judgment was well argued and structured, made it more difficult, at least for me, to accept the negative outcome in this case. At the same time, I also remember my positive feeling after reading the judgment in light of previous (disastrous) case law of the Court concerning Muslim women.
The value of a positive outlook on a negative judgment
Without a doubt, S.A.S. v. France was and still is a disappointing judgment. As Lourdes Peroni and I argued in our post, the Court failed to do full justice to women wearing a face veil, although it had sufficient arguments to do differently. However, we also argued that the judgment is a major step forward in the freedom of religion case law of the ECtHR concerning Muslim women. The language used and the level of attention for the applicant/Muslim woman’s concerns was without precedent. Also the recognition of the context of Islamophobia was a step forward.
Although these considerations did not result in a positive outcome in this case, I assumed at the time that this shift in discourse might have a broader impact. At the very least, it took away the famous stick to beat with that proponents of bans on religious dress restrictions have been using many times to justify a ban: Leyla Sahin v. Turkey. Indeed, the Leyla Sahin judgment is often referred to by practitioners and even lawmakers, in order to justify banning religious dress. Even extreme right parties referred to that case in Belgian parliamentary debates, which is not a compliment for a human rights court. Therefore, going from:
“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” (Leyla Sahin par. 111)
to for example:
“… 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.” (S.A.S. v. France, par. 119)
“[the Court] 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” (S.A.S. v. France, par. 120).
is a major step forward, which respects the applicant’s agency. This reasoning in fact was explicitly joined by the Belgian Conseil d’État in a case concerning a headscarf ban in public schools. (See an analysis of this case here. In fact, the Belgian Conseil d’État reiterated, referring to S.A.S. (par. 119) that a prevailing majority view on the equality of men and women does not suffice to justify a restriction on of a freely chosen religious practice(para 37.2). The Conseil d’État also explicitly joined the Court’s view that such a practice (i.e. the wearing of the headscarf and not the niqab) is an expression of cultural identity that contributes to the religious pluralism inherent to a democracy.
Today, I still catch myself referring to S.A.S. v. France as also a positive case (I have to admit that this is often received with great surprise). At a procedural level, it shows the potential and the importance of third party interventions. A good judgment depends partly on the quality of the case file and the information the Court receives. This is where researchers and civil society can play an important role. At a procedural justice level, it shows how a case with a negative outcome at the level of substantive justice, can still have an important procedural justice impact. Additionally, this case shows how important it is to highlight possible positive aspects of a negative judgment, since they might turn out to be useful in other cases as the Belgian Conseil d’État’s judgment shows.
The value of critical thinking: ‘Vivre ensemble’ and face coverings in Covid-19 times
The Court ruled in S.A.S. v. France that safety didn’t justify a blanket ban on the wearing of a face veil. It also didn’t accept gender equality and the protection of human dignity as legitimate aims on which a ban could rely. Only the aim of ‘living together’ (vivre ensemble) was upheld by the Court:
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)
Read from today’s perspective, where face masks are increasingly becoming a condition for vivre ensemble and where physical distancing between people is becoming the new ‘normal’, this position seems quite ironic. Certainly, it is easy to grasp why covering the face for medical reasons is a prerequisite for living together and aims at protecting the rights of others. In fact, if we do not do that, we put our lives and those of others in danger, including that of the hospital staff who are doing amazing work these days. In this case, the imposed covering of the face has a very clear aim.
In the case of women who wear a face veil and who are prohibited to cover their face in the name of ‘living together’ to protect ‘the rights of others to live in a space of socialisation which makes living together easier’, what kind of right do we protect? What basically hides behind this notion of ‘living together’ in the context of Islamic face veils is, as prof. Brems put it in an earlier post, “the fundamental unease of a large majority of people with the idea of an Islamic face veil, and the widespread feeling that this garment is undesirable in ‘our society’” and not the fact that ‘socialisation’ is not possible when your face is covered. In sum, today’s context reveals even more how subjective the notion of ‘vivre ensemble’ is (see also here). One could wonder how the Court would reason on the same topic today… any candidates with a new case are hereby encouraged to step forward.
To another 10 years! Hopefully with less injustice. In the meantime let us protect ourselves and others, even if this requires covering our faces and keeping some distance. Stay safe!
Note from the editors: This is the last blog post from our anniversary blog symposium. Thanks to all the contributors and to our readers for celebrating our tenth anniversary with us this month.