European Court of Human Rights upholds French veil ban

The European Court of Human Rights has upheld France’s ban on wearing face-covering veils in public places.

The Strasbourg court decided by a majority that the ban did not violate Article 8 of the European Convention on Human Rights, which sets out the right to respect for private and family life, or Article 9, which concerns freedom of thought, conscience and religion.

It found unanimously that the ban was not in breach of Article 14, which prohibits discrimination.

A French national, who is a practicing Muslim, had complained to the court that she was no longer allowed to wear the full-face veil in public following the entry into force, in April 2011, of a law banning the concealment of one’s face in public places.

In its judgment, however, the court said the state had considerable room for manoeuvre, or “a wide margin of appreciation”, as regards this general policy question, on which there were significant differences of opinion.

The French law, which then president Nicolas Sarkozy said was designed to reaffirm French secular values and the rights of women, was likely to affect about 2,000 women living in France, according to official estimates in 2011.

The ban applies in all public spaces but not in private homes, hotel rooms or office space belonging to an association or company (with the exception of rooms where members of the public are received).

The woman who took the case was born in 1990. She described herself as a devout Muslim and said she wore the burqa (a full-body covering including a mesh over the face) and the niqab (a full-face veil leaving an opening only for the eyes).

In her submissions, she said neither her husband nor any other member of her family put pressure on her to dress this way. She wore the niqab in public and in private, but not systematically.

She was thus content not to wear the niqab in certain circumstances but wished to be able to wear it when she chose to do so.

She told the court her aim was not to annoy others but to feel at inner peace with herself.

In its judgment, the court noted that the French parliament had sought, by passing the law, to satisfy the need to identify individuals on public safety grounds and to combat identity fraud.

The judges concluded, however, that the ban was not “necessary in a democratic society” in order to fulfil that aim.

According to the court, the public safety objective could be attained by a mere obligation to show their face and to identify themselves where a risk was established or there was a suspicion of identity fraud.

In its response to the complaint, the French government had referred to the need to ensure “respect for the minimum set of values of an open democratic society”, listing three specific values: respect for gender equality, respect for human dignity and respect for the minimum requirements of life in society, or “living together”.

While dismissing the arguments relating to the first two of those values, the court accepted that the barrier raised against others by a veil concealing the face in public could undermine the notion of “living together”.

It took into account the state’s argument that the face played a significant role in social interaction and said it understood the view that individuals may not wish to see practices or attitudes which would “fundamentally call into question the possibility of open interpersonal relationships”, which formed an “indispensable element of community life within the society.”

The court therefore accepted that the barrier raised against others by a face-concealing veil was seen by the French state as breaching the rights of others to live in a social space that made living together easier.

The court noted that the blanket ban might appear excessive, in view of the small number of women concerned, and that many human rights bodies saw it as disproportionate.

The judges also expressed concern at indications that the debate that led up to the enactment of the law had been marked by Islamophobic remarks.

Nevertheless, the court noted that the ban was not expressly based on the religious connotation of the clothing but solely on the fact that it concealed the face.

In addition, the sanctions set down in the law were among the lightest that could have been envisaged: a fine of up to €150 and the possible obligation to take a citizenship course.

In the court’s view, the lack of common ground between member states of the Council of Europe on the full-face veil supported its finding that states had a wide “margin of appreciation”.

The ban could therefore be seen as proportionate to the aim pursued, namely the preservation of the conditions of “living together”.