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The case: SAS v France [2014] ECHR 695

In 2010, the government of France banned clothing that hid one’s face while in a public place, such as burqas and niqabs. This legislation came about when the National Assembly resolved that the wearing of a veil in public was not compatible with the French way of life. People responsible for creating the laws stated that concealing one’s face was against the ideals of fraternity, that it was uncivil and created obstacles to necessary social interaction. For violating this law, a perpetrator would be subject to a fine for a second-class petty offence followed up with the need to complete a course on citizenship.

One Muslim woman, who had been born in Pakistan but with French citizenship and was a devout Sunni residing in France, chose to ignore the law. Her name was never disclosed by the court, but she said she considered that it was her right to wear a niqab in accordance with the cultural relativism dictated by her religion, and that forcing her to reveal her face violated her rights. She didn’t wear her niqab all the time, and was happy to reveal her face for identity checks as necessary, but stated she had the right to conceal her face whenever she chose to do so, and for whatever reason.

 

Complaints and arguments

An application was made to the European Court of Human Rights, with respect to:

  • Article 3 – “the prohibition of degrading treatment”
  • Article 8 – “the right to respect for private life”
  • Article 9 – “the freedom of religion”
  • Article 10 – “the freedom of expression”
  • Article 11 – “the freedom of association”
  • Article 14 – “the prohibition of discrimination”

Lawyers for the applicant stated that the ban on face concealment could not be based upon the alleged aim of the safety of the public, as the measure was not intended to allay concerns of public safety in high-risk areas such as airport, but was in fact simply a complete ban in virtually all public places. Furthermore, the restrictions could not be justified in line with the aim of respecting human dignity, as it encouraged stereotyping and led to a chauvinistic logic that women who concealed their faces were somehow “faceless”. Lawyers for the applicant stated that the cultural relativism of some religious minorities in France was more important than the norms expected from French citizens, including the right to voluntarily wear a veil if it was so desired. It was also argued that this decision actually discouraged Muslim women from socialising, as they would feel uncomfortable to be seen outside without wearing a veil.

The French law-makers responded by saying that by wearing a veil in public, social ties were broken and it represented a refusal to “vivre ensemble” (“live together”), as having a unconcealed face is an important aspect of normal, social interaction. The Government stated that by wearing a veil, such women were excluding themselves from public interaction, and that the wearing of a niqab or burqa was not compatible with the idea of having a role in the social side of public life. Furthermore, the Government stated that the ban did not break conventions on democratic proportionality and necessity, as it was supported by a majority of French citizens.

The Courts allow States a broad measure of appreciation when there was a need to maintain a balance between private and public interests that are in competition. The Government also noted that the wearing of a full veil was not a common practice in France, and that even high-profile Muslims had been critical of the wearing of a niqab or burqa.

 

The judgement

The majority verdict of the judges was that the ban imposed by the French Government was not in violation of the European Convention on Human Rights. It was the Court’s view that the Government could not invoke gender equality as a convincing basis to ban something that was actually defended by women. The Court expressed concern over anti-Islamic remarks that had been included in the debate that had preceded this law, and that the law did risk making a contribution to gaining credence for certain stereotypes.

The judges also stated that they believed that they majority of people in France were not in favour of the wearing of veils in public, but acknowledged the importance of cultural relativism in the promotion of religions happily co-existing, as was important in any democracy.

In contradiction, the judges emphasized that freedom to practice religion does not mean that every act that is inspired or motivated by religious belief automatically warrants protection, particularly in light of accepted modes of behaviour in public places. There exists a necessity to strike a balance between the views of different groups, and the State can work to maintain public order, particularly in regards to tolerance and religious harmony, within a democratic framework.[1] This is seen by the Court as the continual search for a way of balancing the rights of an individual with the rights of society as a whole.

It was concluded that national authorities were in this case in a better place to evaluate the needs and conditions necessary to best serve this need for an equilibrium than any international court. It was noted that there was hardly any common ground, and no consensus across member States of the European Council as other than France, only Belgium had opted to ban veils. It was underlined that States possess a broad spectrum of appreciation when considering questions about the relationship of religion with the States, which created a complicated dilemma of balancing individual and public interests. Finally, the judges decided that the question of whether the wearing a veil in public place is accepted or not is one best answered by the society involved.

 

Dissenting opinion

Two judges, Helena Jäderblom of Sweden and Angelika Nussberger of Germany gave a dissenting opinion that using the concept of fraternity as justification for the ban was both vague and far-fetched. They pointed out that it is the right of the individual to choose not to partake in contact and communication with others, and that human interaction was still possible if a veil was worn as interaction goes beyond the necessity of observing someone’s face. They agreed with the applicant’s assertion that the ban legislation created selective pluralism and restricted tolerance. The judges said that it was a role of the Court to protect minorities from interferences that were disproportionate, and that social acceptance in France of wearing veils could be increased via raising awareness and convincing people through education. It was the opinion of Judges Jäderblom and Nussberger that the French legislation regarding veils was disproportionate.

 

Conclusion

States and societies have customs concerning what constitutes appropriate dress. The UK Foreign office tells visitors to Saudi Arabia of the necessity of adhering to the strict dress code, including wearing a loose-fitting, full-length coat and carrying a scarf in case they are requested to cover their faces. For Iran, it is stated that woman must conceal their heads with a headscarf and wear trousers or a floor-length skirt, while men must wear long trousers and a long-sleeved shirt. In Pakistan, men and woman should keep their shoulders and legs covered when in public, and women should cover their heads when entering holy places or travelling in rural areas. Such restrictions on public clothing are unheard of in Europe, which makes restrictions placed on cultural relativism something of an oddity.

 

 

References

Cases:

Case of Leyla Şahin v Turkey, Application No 44774/98 (Unreported, European Court of Human Rights, Grand Chamber, 10 November 2005)

Dahlab v Switzerland (2001) V Eur Court HR 449

Hashman v United Kingdom (2000) 30 EHRR 241

SAS v France [2014] ECHR 695

Sunday Times v United Kingdom (1979) 2 EHRR 45

Legislation:

European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 11 April 1950,213 UNTS 222 (entered into force 3 September 1953)

European Convention for the Protection of Human Rights and Fundamental Freedoms

 

Journal Articles:

The European Court of Human Rights: The Past, the Present, the Future’ (2007) 20 National Journal of Constitutional Law 183

Carolyn Evans, Religious Freedom under the European Convention on Human Rights (2001)

Freedom of Religion: UN and European Human Rights Law and Practice (2005) 351

Books:

Fatima Mernissi, ‘Arab Women’s Rights and the Muslim State in the Twenty-First Century: Reflections on Islam as Religion and State’ in Mahnaz Afkhami (ed), Faith and Freedom: Women’s Human Rights in the Muslim World (1995) 33

Other Sources

Clare MacCarthy, ‘Danish Muslim Dismissed for Wearing Headscarf Loses Court Case’, Financial Times (London, UK), 19 December 2003, 10

 

 


[1] Fatima Mernissi, ‘Arab Women’s Rights and the Muslim State in the Twenty-First Century: Reflections on Islam as Religion and State’ in Mahnaz Afkhami (ed), Faith and Freedom: Women’s Human Rights in the Muslim World (1995) 33


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