By Bernd Weller, Heuking Kühn Lüer Wojtek, Frankfurt, Germany
On 11th October 2010, France issued a ban on the public wearing of clothing designed to conceal one’s face. Despite the neutral wording of the law, the ban was discussed in the public as a “burqa-/niqab-ban”. Consequently, the Muslim community in France and other European countries felt discriminated against for its beliefs and the traditional wearing of concealing clothes for Muslim women.
Apart from France, only Belgium introduced a similar ban, whilst most other European countries did not implement such a ban because they believed that such a ban would constitute a breach of the European Convention of Human Rights, in particular article 8 - right to respect for private and family live, article 9 – freedom of thought, conscience and religion, article 10 – freedom of expression and finally, a breach of article 14 of the European Convention of Human Rights – prohibition of discrimination.
A French national – born 1990 – a devout Muslim wore burqa and niqab in accordance with her religious beliefs. The burqa is a full-body-covering which has a mesh over the face; whilst the niqab is a full-face-veil leaving an opening slit for the eyes only. The claimant highlighted that neither her husband nor any other member of her family put any pressure on her wearing such dresses. She emphasized that she wore a niqab both in public and in private, however not systematically and at all times.
The French government had questioned the claimant’s status as a victim making reference to the fact that the law did not refer to her individually but rather demanded general conduct. The ECHR rejected that argument and did not consider the claim as an (illegitimate) actio populares.
The ECHR agreed with the claimant that the French ban on full-face-concealing clothes did indeed interfere with the claimant’s rights under articles 8 and 9 of the European Convention. At the same time, the ECHR accepted that this interference was justified by the ratio legis, i.e. public safety and protection of rights and freedoms of others.
The ECHR on the one hand highlighted that the complete ban of face concealing clothes was not necessary to ensure and protect public safety. A mere obligation to show the face and to identify themselves was considered a less severe infringement of the basic rights compared to a complete ban. The ECHR on the other hand found that the ban was justified entirely by the protection of the rights and freedoms of others. According to the court’s opinion, the ban was necessary to ensure the respect for the minimum set of values of an open democratic society which triggers in particular
• respect for gender equality,
• respect for human dignity, and
• respect for the minimum requirements of life and society (living together).
The ECHR found that a full-face veil builds a barrier raised against others that could undermine the notion of living together. It shared the French government’s opinion that the face of a human being plays a significant role in social interaction. Furthermore, the ECHR showed its understanding for the view that people might not wish to see, in public places, practices or attitudes which would fundamentally call into question the possibility of open interpersonal relationships, which by virtue of an established consensus, form an indispensable element of community life within the society in question.
With regard to the question as to whether or not a complete ban of full-face concealing clothes is proportionate, the ECHR considered the following:
• there is a relatively small number of women concerned;
• for these women the complete ban has a significant negative impact;
• several national and international human rights bodies regard a complete ban as disproportionate;
• the ECHR further highlighted its concern about the public debate about the law – which had been dominated by islamophobic remarks.
Considering all of the above and the fact that the sanctions for infringements of the blanket ban were on the lower end, the ECHR found the French law legitimate and, thus, in line with the European Convention on Human Rights. Only the German and Swedish judges made a dissenting vote.
It must be said, that public opinion in Europe expected the ECHR to take the opposite stand with regard to the French law. The decision to uphold the French blanket ban was therefore somewhat surprising. Even more surprising are the arguments on which the court based its opinion – the opinion that an open democratic society legitimates a blanket ban because an open democratic society is based on the possibility of seeing each other’s face.
It remains to be seen if other European countries will come back to the issue and introduce new bans as well. It furthermore will be interesting to see whether or not employers might have legitimate means to ban full-face concealing clothes at the workplace – in particular in countries without a statutory ban. In Germany, such a case in the city of Frankfurt’s administration hit two years ago but never made the courts – as a settlement was concluded beforehand.