Ban on full-face veil in public 'proportionate' limitation on freedom of religion
By Sr Duran-Corretjer Duran-Corretjer
Domestic law-makers have wide discretion in matter of general policy but case shouldn't be seen as setting wider precedent, judges say
A local authority ban on the wearing of clothing that conceals the face in public places did not breach the right to freedom of religion, the European Court of Human Rights has ruled.
The court found in Dakir v Belgium that the ban, by three Belgian councils, could be regarded as a proportionate measure aiming to preserve the conditions of ‘living together’ as an element of ‘the protection of the rights and freedoms of others’.
Fouzia Dakir brought the case after she failed to get the ban lifted in the Belgian administrative courts. A Muslim, Dakir said she was 16 when she started wearing the niqab, a veil covering the whole face except for the eyes.
Now 40, she argued that although the law was worded in neutral terms, it was aimed in practice at the Islamic veil and constituted an interference with her freedoms under the European Convention on Human Rights.
Dakir said the rule breached not just her freedom of religion under article 9 but also her right to private life under article 8 and her freedom of expression under article 10, as well as the general principle of non-discrimination under article 14.
The court previously held in a similar case in 2014, SAS v France, that a face-veil ban could be justified if the aim was to ensure ‘observance of the minimum requirements of life in society’, which included the protection of the rights and freedoms of others. This guaranteed what the court called ‘living together’ conditions.
The court also refused to interfere with the decision of the Belgian authorities, saying they were better placed to assess whether limitations on individuals’ right to manifest their religion were ‘necessary’. This was especially so as opinions differed widely from one jurisdiction to another on matters of general policy.
In this case, the ECtHR said, Belgium intended to ‘respond to a practice that the state deemed incompatible, in Belgian society, with the ground rules of social communication and, more broadly, with the creation of the human relationships that were essential to life in society. The State was seeking to protect a principle of interaction between individuals that was, in its view, essential to the functioning of a democratic society.’
Addressing the criticism that the local bye-laws were in fact aimed at the Muslim face veil, the judges said ‘while it was true that the scope of the ban was broad the contested provisions did not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which did not have the effect of concealing the face.’
However, the Strasbourg judges said the Belgian administrative court had been ‘excessively formalistic’ in rejecting the applicant’s case, when her arguments on the merits had been set out in a ‘substantiated and structured manner and were of particular significance’. This amounted to a breach of the right to access to a court under article 6.
In a joint concurring opinion, two of the judges underlined the specific circumstances of the case, saying it, along with SAS v France, could not be seen as providing a precedent with a general reach in other European states.
Liberty intervened in the proceedings. Advocating a departure from the SAS approach, the civil rights organisation argued the concept of living together was ‘flexible and open to abuse’.
While the Strasbourg court considered that the concept fell within the protection of the rights and freedoms of others, it said, the majority ruling in SAS was criticised by the minority as being ‘an abstract principle which did not obviously reveal which rights of others were to be protected’.
‘The blanket ban on the wearing of the full veil in public does not offer any protection from coercion by extremist groups, rather it forces women whether they have chosen to wear the burqa or are pressured to do so – to remain behind closed doors,’ the group said. ‘Simply removing what is a perceived source of tension with no regard for the impact on the women who are affected is neither liberating for women nor does it engender pluralism and tolerance in society.’
Jean-Yves Gilg is editor-in-chief of Solicitors Journal