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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Religion and the Public Space

Once more, the Court has been called to decide on a case concerning the public manifestation of beliefs through religious attire, this time in the open public square (Ahmet Arslan et Autres c. Turquie). The outcome is certainly positive. However, prospects for the wearing of religious garment inside public institutions are far from clear.

The case concerns the criminal conviction of members of a religious group for wearing their religious attire in public, on occasion of a ceremony held at a mosque in Ankara. After touring the streets of the city while wearing their distinctive clothing, and following various incidents, they were arrested and placed in police custody. Criminal proceedings under anti-terrorism laws followed. The day of the hearing, applicants appeared in court wearing their religious garments, including a turban which some of them refused to remove when asked to by the court. In the end, they were all convicted for violating Act 671 of 28 November 1925, which abolishes the use of religious headgear (except for religious officials who are authorized) and Act 2596 of 3 December 1934, which imposes a ban on wearing religious attire other than in places of worship or at religious ceremonies.

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