Local ‘burqa ban’ violates human rights (according to Belgian judge)

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. Continue reading

Would a Niqab and Burqa ban pass the Strasbourg test?

By Lourdes Peroni, Saïla Ouald-Chaib and Stijn Smet

Whether it is a Burqa or a Niqab, what is at stake is a face-covering veil. This veil is increasingly becoming the subject of heated discussion within Europe. In France, a bill that aims to prohibit its wearing is the subject of a national debate. Also at the level of the European Union certain members of the European Parliament are calling for a general ban on the wearing of face-covering veils.

In this context, the Belgian Chamber of Representatives recently passed an amendment to its Penal Code prohibiting the wearing of clothes that “completely or largely cover the face” and thus became the first European country to introduce what is popularly referred to as the Burqa ban. Although the Chamber of Representatives already approved it with near unanimity (136 votes in favor, two abstentions), the law is not yet definitive as it requires approval by the Senate (which will only discuss the proposed bill after the upcoming federal elections). Despite the fact that the proposed new article of the Belgian Penal Code does not mention the words Burqa or Niqab, and is thus neutral on its face, the Parliamentary discussions clearly show that the mentioned face-covering veils were the intended target of the new provision. If passed by the Senate under its current form, the ban would apply in all public spaces, including streets, parks, shops, public transport, airports, banks, and, of course, public buildings. An exception is introduced for certain cases, including for festivities such as carnival, in which the wearing of face-covering clothing remains allowed. Whoever violates the new law risks a fine of around € 100 and/or a prison sentence of 1 to 7 days. Rationales put forward for the ban include ‘security reasons,’ ‘public order,’ and ‘the protection of the dignity of women and gender equality’.

In this post we would like to analyze the Belgian ‘Burqa ban’ from the angle of the jurisprudence of the European Court of Human Rights.

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