In October 2010, France enacted a law banning the wearing of any clothing which fully covers the face in any public space. In effect the law is intended to regulate the burqa and niqab. In particular the law was intended to protect “women’s freedom and dignity”, affirm “gender equality”, ensure “public safety” and deter “the practice of the full-face veil.” The law imposes a fine and/or mandatory “citizenship training” for anyone found wearing a full-face veil in public. France enacted the law despite the fact that the number of women wearing a full-face veil is exceedingly small. The French government estimates that 1,900 women wear the veil in France and some estimates place the number as low as 400. The European Court of Human Rights found that such a ban was not justified by public safety or gender equality, but that it was justified by the concept of “living together”.
On October 11, 2010, France enacted a law prohibiting the concealment of the face in public space, save in places of worship. The law came into effect on April 11, 2011, after a six-month transition period of “education," mainly to explain to women already wearing full-face veils the consequences of their continuing to do so.
The French ban is far-reaching and punitive. In part, it provides that “No one shall, in any public space, wear clothing designed to conceal the face” and defines public space “as composed of the public highway and premises open to the public or used for the provision of a public service.” Any person defying the ban is subject to a fine of €150 and/or required to complete a citizenship course in order to remind the convicted person of “republican values of tolerance and respect for human dignity, and to raise awareness of [her] penal and civil responsibility and duties imposed by life in society.”
In March 2010, Thomas Hammarberg, the Council of Europe’s Commissioner for Human Rights, stated that bans on the full-face veil would not liberate oppressed women but might instead lead to their further alienation from European societies. In his view, “a general ban on such attire would constitute an ill-advised invasion of individual privacy,” raising “serious questions about whether such legislation would be compatible with the European Convention on Human Rights.”
In June 2010, the Council of Europe’s Parliamentary Assembly passed a recommendation, “[C]all[ing] on member states not to establish a general ban of full veiling or other religious or special clothing.” In July 2010, Thorbjørn Jagland, Secretary General of the Council of Europe, stated that bans on the full-face veil “miss[ed] the point of European democracy and human rights” and “feed on irrational, populist fear of difference, fear of the unfamiliar.”
As of March 31, 2012, one year after the ban was implemented, the French Ministry of Interior reported that 299 women had received a fine for wearing the full-face veil, and 354 women had been stopped and asked for visual identification.
S.A.S. [name anonymized at her request by the European Court] is a French Muslim woman who would like to wear the veil in public but would be prosecuted if she did so. She filed an application to the European Court of Human Rights challenging the law the day it entered into force, alleging violations of the prohibition of degrading treatment (Article 3), the right to respect for her private life (Article 8), the right to freedom of religion (Article 9), freedom of expression (Article 10), freedom of assembly and association (Article 11), and the prohibition against discrimination (Article 14).
The Court has only taken up article 8, 9 and 14 ECHR for further consideration.
The Justice Initiative filed two written comments as third party intervener with the European Court of Human Rights. In its first set of comments Justice Initiatve addressed the comparative practice of Western European states with respect to regulating the full-face veil, set out the main considerations for the application of the principle of proportionality, and setout the findings of the Open Society Foundations report Unveiling the Truth which is the first qualitative empirical research into the experiences and motivations of women who wear a full-face veil in France.
The second submission, which was made in September 2013 after the relinquishment of the case to the Grand Chamber of the Court, was a new report, After the Ban: Experiences of 35 Women of the Full-Face Veil in France, written by Naima Bouteldja, examining the effects of France’s ban on wearing a full-face veil in public on the daily experiences of women who are subject to the ban.
Four more NGOs, the Ghent University Human Rights Centre, Amnesty International, Liberty and Article 19 filed written observations. The Belgian Government, who have also enacted a full face veil prohibition, intervened as well.
The Justice Initiative made the following arguments to the Court.
Comparative Practice. A review of the provenance and status of comparative bans on full-face veils in Belgium, Germany, Italy, and the Netherlands, demonstrating that the French law at issue in this case imposes more stringent restrictions than the laws of other countries except Belgium.
Proportionality. A review of permissible restrictions on religious attire in the public domain, in view of the criteria for justification and the evidence upon which any such ban should be based.
Unveiling the Truth. The Open Society Foundations study Unveiling the Truth indicates that Muslim women in France wear the full-face veil as part of their personal search for identity and an expression of their Muslim faith, rather than because of coercion.
After the Ban. The follow-up report to Unveiling the Truth findings indicate that that since the enforcement of the ban, restrictions on the movement and security of women in the public space, has had significant detrimental consequences on their physical and mental health and on their relationships with family and friends. The women also describe that the law has had significant adverse effects on their husbands and children, particularly younger children. All of the respondents describe a decline in their personal security. The women described incidents of public harassment and physical assaults resulting from a climate in which the public appears emboldened to act against women wearing the full-face veil.
And finally, the official sanctions carried out pursuant to the law have overwhelmingly targeted women. There has been only one conviction under the provision of the law that criminalizes the forcing of a person to conceal their face.
October 11, 2011. France passes a law prohibiting the concealment of the face in public space, Loi no. 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public.
April 11, 2011. The law enters into force. S.A.S. files an application with the European Court of Human Rights.
February 1, 2012. The European Court of Human Rights communicates the case to the Government of France.
July 10, 2012. The Justice Initiative submits written comments to the European Court of Human Rights.
May 28, 2013. The assigned Chamber of the European Court of Human Rights relinquishes jurisdiction to the Grand Chamber.
November 27, 2013. European Court of Human Rights Grand Chamber oral hearing in Strasbourg, France.
July 1, 2014. Judgment of the Grand Chamber.
On July 1, 2014, the Grand Chamber of the European Court of Human Rights gave judgment, upholding the ban.
The court rejected the two principal arguments advanced by the French government to justify the infringement on personal rights—that the ban was a necessary and proportionate response to threats to public safety and affronts to gender equality and human dignity, of both those who chose to wear it and those who do not.
Instead, the court considered that the blanket ban on the wearing of particular religious clothing was justified by the necessity of “living together,” a justification that has no prior basis in the court’s jurisprudence. The Court found that individuals might not want to see in public practices or attitudes which would fundamentally call into question the possibility of open, interpersonal relationships, which, by virtue of an established consensus, formed an indispensable element of community life. The two dissenting judges argued that “the very general concept of ‘living together’ does not fall directly under any of the rights and freedoms guaranteed within the [European] Convention. Even if it could arguably be regarded as touching upon several rights, such as the right to respect for private life (Article 8) and the right not to be discriminated against (Article 14), the concept seems far-fetched and vague.”
The court admitted that the blanket ban might still appear excessive, in view of the small number of women concerned, estimated at around 1,500. It noted that numerous international human rights bodies regarded the ban as disproportionate, that the debate leading to the ban was marked by Islamophobia, and that there was a risk that such a ban consolidated stereotypes and encouraged the expression of intolerance. It also observed that remarks that constituted a vehement attack on a religious or ethnic group were not protected by freedom of expression, and undermined the European Rights Convention values of tolerance, social peace, and non-discrimination.
However, the court considered that women could still wear non-face-covering clothing, such as headscarves, and that the €150 fine was not very much. It noted that France had scope to interpret the European rights convention, as the issue was a choice of society decided in a democratic process. The lack of common ground in Europe was also relevant. The ban was proportionate to the aim of preserving the conditions of “living together.”