Rejecting claims that it violated (1) Article 8 of the European Convention on Human Rights, which sets out the right to respect for private and family life, or (2) Article 9, which concerns freedom of thought, conscience and religion, or (3) Article 14, which prohibits discrimination, the European Court of Human Rights, buy its Grand Chamber, held that French law banning full face covering in public did not violate the provisions of the European Convention of Human Rights. (Press Release issued by the Registrar of the Court, ECHR 191 (2014) 01.07.2014: French Ban on the Wearing in Public of Clothing designed to Conceal One's Face Does not Breach the Convention).
A case was brought by a 24-year-old French woman, who argued that the ban on wearing the veil in public violated her freedom of religion and expression. French law says nobody can wear in a public space clothing intended to conceal the face. The penalty for doing so can be a 150-euro fine (£120; $205). The 2010 law came in under former conservative President Nicolas Sarkozy. A breach of the ban can also mean a wearer having to undergo citizenship instruction. (European Court upholds French full veil ban, BBC News Online, July 1, 2014).
The case is most interesting because of its emphasis on the political importance, now raised to a trans-constitutional principle, that political solidarity--and the construction of a harmonious society--are substantially important enough to warrant some impairment of individual or personal rights, including rights grounded in religious custom. "The Court emphasized that respect for the conditions of 'living together' was a legitimate aim for the measure at issue and that, particularly as the State had a lot of room for manoeuvre ('a wide margin of appreciation) as regards this general policy question on which there were significant differences of opinion, the ban imposed by the Law of 11 October 2010 did not breach the Convention." (French Ban on the Wearing in Public of Clothing designed to Conceal One's Face Does not Breach the Convention). For a critique of the solidarity principle as a basis for managing individual human rights, see Dabniel Augenstein, "Normative fault-lines of trans-national human rights jurisprudence: National pride and religious prejudice in the European legal space," Global Constitutionalism 2(3):469-497 (2013) doi:10.1017/S2045381713000154 (suggesting that the diversity of national-majoritarian approaches to social cohesion in Europe prevents the Court from ensuring an effective trans-national protection of religious pluralism). On the importance of "margins of appreciation", e.g., Larry Catá Backer, “Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S.,” 7 Tulsa Comparative & International Law Journal 327-373 (2000).
Note also the important role of the application of the principle of proportionality in the decision. (e.g., Jeremy McBride, "Proportionality and the European Convention on Human Rights, in The Principle of Proportionality in the Laws of Europe (Evelyn Ellis, ed., 1999)). Yet one of the "penalties", attending classes on citizenship, is potentially substantially transformative in the way it appears to give the state broad powers of socialization of its citizens, even where the objectives of socialization may run counter to the deeply held values of minority communities into which these are projected. Yet group solidarity is an ancient basis for political union and for the cohesion of the state. The extent to which the State may then protect its own "group feeling" (an ancient concept even within the dar al Islam, Abd Ar Rahman bin Muhammed ibn Khaldun, The Muqaddimah (Franz Rosenthal, trans., Princeton University Press, 1967)) may play an increasingly larger role in the jurisprudence of the ECHR. Also interesting was the Court's fairly narrow reading of the justification of public safety as a predicate for impairing individual rights.
The opinion may be accessed HERE (ENGLISH) and ICI (FRANÇAIS) and both are included below.
The extended Press Release in English and French or may be accessed here:
ENGLISH: Click here to download it.
FRANÇAIS: Cliquez ici pour le télécharger.
GRAND CHAMBER
CASE OF S.A.S. v. FRANCE
(Application no. 43835/11)
JUDGMENT
STRASBOURG
1 July 2014
This judgment is final but may be subject to editorial revision.
In the case of S.A.S. v. France,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Dean Spielmann, President,
Josep Casadevall,
Guido Raimondi,
Ineta Ziemele,
Mark Villiger,
Boštjan M. Zupančič,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Ledi Bianku,
Ganna Yudkivska,
Angelika Nußberger,
Erik Møse,
André Potocki,
Paul Lemmens,
Helena Jäderblom,
Aleš Pejchal, judges,
and Erik Fribergh, Registrar,
Having deliberated in private on 27 November 2013 and on 5 June 2014,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an application (no. 43835/11) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national (“the applicant”), on 11 April 2011. The President of the Fifth Section, and subsequently the President of the Grand Chamber, acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).
2. The applicant was represented before the Court by Mr Sanjeev Sharma, a solicitor practising in Birmingham, Mr Ramby de Mello and Mr Tony Muman, barristers practising in Birmingham, and Mr Satvincer Singh Juss, a barrister practising in London.
The French Government (“the Government”) were represented by their Agent, initially Ms Edwige. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs, then Mr François Alabrune from May 2014.
3. The applicant complained that the ban on wearing clothing designed to conceal one’s face in public places, introduced by Law no. 2010-1192 of 11 October 2010, deprived her of the possibility of wearing the full-face veil in public. She alleged that there had been a violation of Articles 3, 8, 9, 10 and 11 of the Convention, taken separately and together with Article 14 of the Convention.
4. The application was assigned to the Court’s Fifth Section (Rule 52 § 1). On 1 February 2012 notice of the application was given to the Government.
5. On 28 May 2013 a Chamber of the Fifth Section, composed of Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, Paul Lemmens and Aleš Pejchal, judges, and also of Claudia Westerdiek, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected (Article 30 of the Convention and Rule 72).
6. The composition of the Grand Chamber was determined in accordance with the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
7. The applicant and the Government each filed written observations on the admissibility and merits of the case.
8. The non-governmental organisations Amnesty International, Liberty, Open Society Justice Initiative and ARTICLE 19, together with the Human Rights Centre of Ghent University and the Belgian Government, were given leave to submit written comments (Article 36 § 2 of the Convention and Rule 44 § 3). The Belgian Government were also given leave to take part in the hearing.
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 27 November 2013 (Rule 59 § 3).
There appeared before the Court:
(a) for the respondent Government
Ms Edwige Belliard, Director of Legal Affairs, Ministry of Foreign Affairs, Agent,
Ms Nathalie Ancel, Head, Human Rights Section, Ministry of Foreign Affairs, Co-Agent,
Mr Sylvain Fournel, Drafting Officer, Human Rights Section, Ministry of Foreign Affairs,
Mr Rodolphe Feral, Drafting Officer, Human Rights Section, Ministry of Foreign Affairs,
Ms Patricia Rouault-Chalier, Head, General Legal and Litigation Section, Ministry of Justice,
Mr Eric Dumand, Head of European, International and Institutional Law and Litigation Department, Ministry of the Interior, Advisers;
(b) for the applicant
Mr Ramby De Mello,
Mr Tony Muman,
Mr Satvinder Singh Juss, Counsel,
Mr Eirik Bjorge,
Ms Anastasia Vakulenko,
Ms Stephanie Berry, Advisers;
(c) for the Belgian Government
Ms I. Niedlispacher, Co-Agent.
The Court heard addresses by Ms Belliard, by Mr de Mello and Mr Muman and by Ms Niedlispacher, and the replies of Ms Belliard and Mr de Mello to questions from judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant is a French national who was born in 1990 and lives in France.
11. In the applicant’s submission, she is a devout Muslim and she wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. According to her explanation, the burqa is a full-body covering including a mesh over the face, and the niqab is a full-face veil leaving an opening only for the eyes. The applicant emphasised that neither her husband nor any other member of her family put pressure on her to dress in this manner.
12. The applicant added that she wore the niqab in public and in private, but not systematically: she might not wear it, for example, when she visited the doctor, when meeting friends in a public place, or when she wanted to socialise in public. She was thus content not to wear the niqab in public places at all times but wished to be able to wear it when she chose to do so, depending in particular on her spiritual feelings. There were certain times (for example, during religious events such as Ramadan) when she believed that she ought to wear it in public in order to express her religious, personal and cultural faith. Her aim was not to annoy others but to feel at inner peace with herself.
13. The applicant did not claim that she should be able to keep the niqab on when undergoing a security check, at the bank or in airports, and she agreed to show her face when requested to do so for necessary identity checks.
14. Since 11 April 2011, the date of entry into force of Law no. 2010-1192 of 11 October 2010 throughout France, it has been prohibited for anyone to conceal their face in public places.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Law of 11 October 2010 “prohibiting the concealment of one’s face in public places”
1. Legislative history
(a) Report “on the wearing of the full-face veil on national territory”
15. The conference of Presidents of the National Assembly, on 23 June 2009, established a parliamentary commission comprising members from various parties with the task of drafting a report on “the wearing of the full-face veil on national territory”.
16. The report of some 200 pages, deposited on 26 January 2010, described and analysed the existing situation. It showed, in particular, that the wearing of the full-face veil was a recent phenomenon in France (almost no women wore it before 2000) and that about 1,900 women were concerned by the end of 2009 (of whom about 270 were living in French overseas administrative areas); nine out of ten were under 40, two-thirds were French nationals and one in four were converts to Islam. According to the report, the wearing of this clothing existed before the advent of Islam and did not have the nature of a religious precept, but stemmed from a radical affirmation of individuals in search of identity in society and from the action of extremist fundamentalist movements. The report further indicated that the phenomenon was non-existent in countries of central and eastern Europe, specifically mentioning the Czech Republic, Bulgaria, Romania, Hungary, Latvia and Germany. It was not therefore a matter of debate in those countries, unlike the situation in Sweden and Denmark, where the wearing of such veils nevertheless remained marginal. Moreover, the question of a general ban had been discussed in the Netherlands and in Belgium (a Law “to prohibit the wearing of any clothing which totally or principally conceals the face” has since been enacted in Belgium, on 1 June 2011; see paragraphs 40-41 below). The report was also critical of the situation in the United Kingdom, where it pointed to a sectarian trend driven by radical and fundamental Muslim groups, who were taking advantage of a legal system that was very protective of individual fundamental rights and freedoms in order to obtain recognition of rights that were specifically applicable to residents of Muslim faith or origin.
17. The report went on to criticise “a practice at odds with the values of the Republic”, as expressed in the maxim “liberty, equality, fraternity”. It emphasised that, going beyond mere incompatibility with secularism, the full-face veil was an infringement of the principle of liberty, because it was a symbol of a form of subservience and, by its very existence, negated both the principle of gender equality and that of the equal dignity of human beings. The report further found that the full-face veil represented a denial of fraternity, constituting the negation of contact with others and a flagrant infringement of the French principle of living together (le “vivre ensemble”).
The report, thus finding it necessary to “release women from the subservience of the full-face veil”, advocated a three-pronged course of action: to convince, protect women and envisage a ban. It made the following four proposals: first, to adopt a resolution reasserting Republican values and condemning as contrary to such values the wearing of the full-face veil; secondly, to initiate a general survey of the phenomena of amalgamation, discrimination and rejection of others on account of their origins or faith, and of the conditions of fair representation of spiritual diversity; thirdly, to reinforce actions of awareness and education in mutual respect and diversity and the generalising of mediation mechanisms; and fourthly, to enact legislation guaranteeing the protection of women who were victims of duress, which would strengthen the position of public officials confronted with this phenomenon and curb such practices. The report emphasised that among both the parliamentary commission’s members and those of the political formations represented in Parliament, there was no unanimous support for the enactment of a law introducing a general and absolute ban on the wearing of the full-face veil in public places.
(b) Opinion of the National Advisory Commission on Human Rights “on the wearing of the full-face veil”
18. In the meantime, on 21 January 2010, the National Advisory Commission on Human Rights (Commission nationale consultative des droits de l’homme – CNCDH) had issued an “opinion on the wearing of the full-face veil”, stating that it was not in favour of a law introducing a general and absolute ban. It took the view, in particular, that the principle of secularism alone could not serve as a basis for such a general measure, since it was not for the State to determine whether or not a given matter fell within the realm of religion, and that public order could justify a prohibition only if it were limited in space and time. The opinion also emphasised the risk of stigmatising Muslims and pointed out that a general prohibition could be detrimental to women, in particular because those who were made to wear the full-face veil would additionally become deprived of access to public areas.
19. That being said, the CNCDH observed that support for women who were subjected to any kind of violence had to be a political priority; it advocated, in order to combat any form of obscurantism, encouraging the promotion of a culture of dialogue, openness and moderation, with a view to fostering better knowledge of religions and the principles of the Republic; it called for the strengthening of civic education courses – including education and training in human rights – at all levels, for both men and women; it sought the strict application of the principles of secularism and neutrality in public services, and the application of existing legislation; and it expressed the wish that, in parallel, sociological and statistical studies should be carried out in order to monitor the evolution of the wearing of the full-face veil.
(c) Study by the Conseil d’État on “the possible legal grounds for banning the full veil”
20. On 29 January 2010 the Prime Minister asked the Conseil d’État to carry out a study on “the legal grounds for a ban on the full veil” which would be “as wide and as effective as possible”.
21. The Conseil d’État thus completed its “study on the possible legal grounds for banning the full veil”, of which the report was adopted by the Plenary General Assembly on 25 March 2010. It interpreted the question put to it as follows: can we envisage a legal ban, for particular reasons and within prescribed limits, on the wearing of the full veil as such, or are we required to address the more general issue of concealment of the face, with the wearing of this garment being just one example?
22. The Conseil d’État first observed that existing legislation already addressed this issue in various ways, whether through provisions whose effect was to ban the wearing of the full veil itself by certain persons and in certain circumstances, by imposing occasional restrictions on concealment of the face for public order reasons, or by envisaging criminal sanctions for the instigators of such practices. It noted, however, that the relevant provisions were varied in nature and that comparable democracies were like France in not having national legislation imposing a general ban on such practices in public places. In view of this finding, the Conseil d’État questioned the legal and practical viability of prohibiting the wearing of the full veil in public places, having regard to the rights and freedoms guaranteed by the Constitution, the Convention and European Union law. It found it impossible to recommend a ban on the full veil alone, as a garment representing values that were incompatible with those of the Republic, in that such a ban would be legally weak and difficult to apply in practice. It observed in particular that the principle of gender equality was not intended to be applicable to the individual person, i.e. to an individual’s exercise of personal freedom. It further took the view that a less specific ban on the deliberate concealment of the face, based mainly on public order considerations and interpreted more or less broadly, could not legally apply without distinction to the whole of the public space under prevailing constitutional and Convention case-law.
23. However, the Conseil d’État believed that, in the present state of the law, it would be possible to enact more coherent legislation, which would be binding and restrictive, comprising two types of provision: first, stipulating that it was forbidden to wear any garment or accessory that had the effect of hiding the face in such a way as to preclude identification, either to safeguard public order where it was under threat, or where identification appeared necessary for access to or movement within certain places, or for the purpose of certain formalities; secondly, strengthening enforcement measures that would particularly be directed against individuals who forced others to hide their faces and thus conceal their identity in public places.
(d) Resolution of the National Assembly “on attachment to respect for Republic values at a time when they are being undermined by the development of radical practices”
24. On 11 May 2010 the National Assembly adopted, by a unanimous vote, a Resolution “on attachment to respect for Republic values at a time when they are being undermined by the development of radical practices”.
In this Resolution the National Assembly made the following statements:
“1. Considers that radical practices undermining dignity and equality between men and women, one of which is the wearing of the full veil, are incompatible with the values of the Republic;
2. Affirms that the exercise of freedom of expression, opinion or belief cannot be relied on by anyone for the purpose of flouting common rules, without regard for the values, rights and duties which underpin society;
3. Solemnly reaffirms its attachment to respect for the principles of dignity, liberty, equality and fraternity between human beings;
4. Expresses the wish that the fight against discrimination and the promotion of equality between men and women should be a priority in public policies concerning equal opportunities, especially in the national education system;
5. Finds it necessary for all appropriate means to be implemented to ensure the effective protection of women who suffer duress or pressure, in particular those who are forced to wear the full veil.”
(e) Bill before Parliament
25. The draft of a law prohibiting the concealment of one’s face in public places was deposited in May 2010, the Government having considered that the other options (mediation and parliamentary resolution) were not sufficiently effective and that a ban limited to certain places or circumstances would not have been an appropriate means of safeguarding the principles in question and would have been difficult to implement (Bill prohibiting the concealment of one’s face in public places, impact assessment, May 2010).
The Bill contained an “explanatory memorandum”, which reads as follows:
“France is never as much itself, faithful to its history, its destiny, its image, than when it is united around the values of the Republic: liberty, equality, fraternity. Those values form the foundation-stone of our social covenant; they guarantee the cohesion of the Nation; they underpin the principle of respect for the dignity of individuals and for equality between men and women.
These are the values which have today been called into question by the development of the concealment of the face in public places, in particular by the wearing of the full veil.
This question has given rise, for about a year now, to a wide public debate. The finding, enlightened by testimony and the report of the National Assembly’s commission, is unanimous. Even though the phenomenon at present remains marginal, the wearing of the full veil is the sectarian manifestation of a rejection of the values of the Republic. Negating the fact of belonging to society for the persons concerned, the concealment of the face in public places brings with it a symbolic and dehumanising violence, at odds with the social fabric.
The decreeing of ad hoc measures has been envisaged, entailing partial bans limited to certain places and, if appropriate, to certain periods or for the benefit of certain services. Such a solution, in addition to the fact that it would encounter extreme difficulties in its implementation, would constitute no more than an inadequate, indirect and circuitous response to the real problem.
The voluntary and systematic concealment of the face is problematic because it is quite simply incompatible with the fundamental requirements of ‘living together’ in French society.
The defence of public order is not confined to the preservation of tranquillity, public health or safety. It also makes it possible to proscribe conduct which directly runs counter to rules that are essential to the Republican social covenant, on which our society is founded.
The systematic concealment of the face in public places, contrary to the ideal of fraternity, also falls short of the minimum requirement of civility that is necessary for social interaction.
Moreover, this form of public confinement, even in cases where it is voluntary or accepted, clearly contravenes the principle of respect for the dignity of the person. In addition, it is not only about the dignity of the individual who is confined in this manner, but also the dignity of others who share the same public space and who are thus treated as individuals from whom one must be protected by the refusal of any exchange, even if only visual.
Lastly, in the case of the full veil, worn only by women, this breach of the dignity of the person goes hand in hand with the public manifestation of a conspicuous denial of equality between men and women, through which that breach is constituted.
Having been consulted about the legal solutions that would be available to the public authorities in order to curb the development of this phenomenon, the Conseil d’État envisaged an approach based on a new conception of public order, considered in its ‘non-material’ dimension.
Whilst it found such an approach too innovative, it did so after noting that it was reflected in certain judicial decisions, particularly in a decision where the Constitutional Council had found that the conditions of ‘normal family life’ secured to aliens living in France could validly exclude polygamy, or indeed the case-law of the Conseil d’État itself, which allowed certain practices, even if consensual, to be proscribed when they offended against the dignity of the person. This is especially true where the practice in question, like the concealment of the face, cannot be regarded as inseparable from the exercise of a fundamental freedom.
These are the very principles of our social covenant, as solemnly restated by the National Assembly when it adopted unanimously, on 11 May 2010, its resolution on attachment to respect for Republican values, which prohibit the self-confinement of any individual who cuts himself off from others whilst living among them.
The practice of concealing one’s face, which could also represent a danger for public safety in certain situations, thus has no place within French territory. The inaction of the public authorities would seem to indicate an unacceptable failure to defend the principles which underpin our Republican covenant.
It is for the sake of those principles that the present Bill seeks to introduce into our legislation, following the necessary period of explanation and education, an essential rule of life in society to the effect that ‘no one may, in public places, wear clothing that is designed to conceal the face’.”
26. The Bill was supported by the National Assembly’s Delegation on the rights of women and equal opportunities (information report registered on 23 June 2010, no. 2646) and the Standing Committee on Legislation (Commission des lois) issued a favourable report (registered on 23 June 2010, no. 2648).
27. The Law was passed by the National Assembly on 13 July 2010 with 335 votes in favour, one vote against and three abstentions, and by the Senate on 14 September 2010, with 246 votes in favour and one abstention. After the Constitutional Council’s decision of 7 October 2010 finding that the Law was compliant with the Constitution (see paragraph 30 below), it was enacted on 11 October 2010.
2. Relevant provisions of Law no. 2010-1192
28. Sections 1 to 3 (in force since 11 April 2011) of Law no. 2010‑1192 of 11 October 2010 “prohibiting the concealment of one’s face in public places” read as follows:
Section 1
“No one may, in public places, wear clothing that is designed to conceal the face.”
Section 2
“I. - For the purposes of section 1 hereof, ‘public places’ comprise the public highway and any places open to the public or assigned to a public service.
II. - The prohibition provided for in section 1 hereof shall not apply if the clothing is prescribed or authorised by primary or secondary legislation, if it is justified for health or occupational reasons, or if it is worn in the context of sports, festivities or artistic or traditional events.”
Section 3
“Any breach of the prohibition laid down in section 1 hereof shall be punishable by a fine, at the rate applying to second-class petty offences (contraventions) [150 euros maximum].
An obligation to follow a citizenship course, as provided at paragraph 8o of Article 131-16 of the Criminal Code, may be imposed in addition to or instead of the payment of a fine.”
The provisions for the obligation to follow a citizenship course can be found in Articles R. 131-35 to R. 131-44 of the Criminal Code. The purpose of the course is to remind the convicted persons of the Republican values of tolerance and respect for the dignity of the human being and to make them aware of their criminal and civil liability, together with the duties that stem from life in society. It also seeks to further the person’s social integration (Article R. 131‑35).
29. Law no. 2010-1192 (section 4) also inserted the following provision into the Criminal Code:
Article 225-4-10
“Any person who forces one or more other persons to conceal their face, by threat, duress, coercion, abuse of authority or of office, on account of their gender, shall be liable to imprisonment for one year and a fine of 30,000 euros.
Where the offence is committed against a minor, such punishment shall be increased to two years’ imprisonment and a fine of 60,000 euros.”
B. Decision of the Constitutional Council of 7 October 2010
30. The Constitutional Council (Conseil constitutionnel), to which the matter had been referred on 14 September 2010 by the Presidents of the National Assembly and of the Senate, as provided for in the second paragraph of Article 61 of the Constitution, declared Law no. 2010-1192 compliant with the Constitution, subject to one reservation (point 5), in a decision of 7 October 2010 (no. 2010-613 DC), which reads as follows:
“... 3. Article 4 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims: ‘Liberty consists in being able to do anything which does not harm others: thus the exercise of the natural rights of every man has no bounds other than those which ensure to other members of society the enjoyment of these same rights. These bounds shall be determined solely by the law’. Article 5 of the same Declaration proclaims: ‘The law shall prohibit solely those actions which are harmful to society. Nothing which is not prohibited by law shall be impeded and no one shall be compelled to do that which the law does not prescribe’. Article 10 proclaims: ‘No one shall be harassed on account of his opinions and beliefs, even religious, on condition that their manifestation does not disturb public order as determined by law’. Lastly, paragraph 3 of the Preamble to the Constitution of 1946 provides: ‘The law shall guarantee women equal rights to those of men in all spheres’.
4. Sections 1 and 2 of the statute referred for review are intended to respond to practices, which until recently were of an exceptional nature, consisting in concealing the face in public places. The legislature was of the view that such practices might be dangerous for public safety and fail to comply with the minimum requirements of life in society. It also found that those women who concealed their face, voluntarily or otherwise, were placed in a situation of exclusion and inferiority that was patently incompatible with the constitutional principles of liberty and equality. In passing the statutory provisions referred for review, the legislature thus complemented and generalised rules which were previously reserved for ad hoc situations for the purpose of protecting public order.
5. In view of the purposes which it sought to achieve and taking into account the nature of the sanction introduced for non-compliance with the rule it has laid down, the legislature has passed statutory provisions which reconcile, in a manner which is not disproportionate, the safeguarding of public order and the guaranteeing of constitutionally protected rights. However, prohibiting the concealment of the face in public places cannot, without excessively contravening Article 10 of the 1789 Declaration, restrict the exercise of religious freedom in places of worship open to the public. With this reservation, sections 1 to 3 of the statute referred for review are not unconstitutional.
6. Section 4 of the statute referred for review, which punishes by a term of one year’s imprisonment and a fine of 30,000 euros any person who forces another person to conceal his or her face, and sections 5 to 7 thereof concerning the entry into force of the statute and its implementation, are not unconstitutional. ...”
C. Prime Minister’s Circular of 2 March 2011
31. Published in the Official Gazette of 3 March 2011, the Prime Minister’s Circular of 2 March 2011 on the implementation of Law no. 2010-1192 of 11 October 2010 prohibiting the concealment of the face in public places contains the following indications:
“... I. Scope of the Law
1. Factors constituting the concealment of the face in public places
The concealment of the face in public places is prohibited from 11 April 2011 throughout the territory of the Republic, both in metropolitan France and in French overseas administrative areas. The offence is constituted when a person wears an item of clothing that is designed to conceal his or her face and when he or she is in a public place; these two conditions are necessary and sufficient.
(a) Concealment of one’s face
Extent of the ban
Items of clothing designed to conceal the face are those which make the person impossible to identify. The face does not have to be fully concealed for this to be so.
The following are prohibited in particular, without this list being exhaustive: the wearing of balaclavas (cagoules), full-face veils (burqa, niqab, etc.), masks or any other accessory or item of clothing which has the effect, whether separately or in combination with others, of concealing the face. Since the offence is classified as a petty offence (contravention), the existence of intent is irrelevant: it is sufficient for the clothing to be designed to conceal the face.
Statutory derogations
Section 2 of the Law provides for a number of derogations from the ban on concealing one’s face.
First, the ban does not apply ‘if the clothing is prescribed or authorised by primary or secondary legislation’. This is the case, for example, under Article L. 431-1 of the Road-Traffic Code, which requires the drivers of motorcycles to wear crash-helmets.
Secondly, the ban does not apply if the clothing ‘is justified for health or occupational reasons’. The occupational reasons concern, particularly, the subject-matter covered by Article L. 4122-1 of the Employment Code: ‘the employer’s instructions shall stipulate, in particular where the nature of the risks so justify, the conditions of use of any equipment, any means of protection, and any dangerous substances and concoctions. They shall be appropriate to the nature of the tasks to be performed’.
Lastly, the ban does not apply if the clothing ‘is worn in the context of sports, festivities or artistic or traditional events’. For example, religious processions, when they are of a traditional nature, fall within the scope of the derogations from the ban laid down by section 1. There is also a derogation in respect of the face protections that are prescribed in a number of sports.
The provisions of the Law of 11 October 2010 apply without prejudice to any provisions which may otherwise prohibit or govern the wearing of clothing in certain public services and which remain in force.
This is the case for Law no. 2004-228 of 15 March 2004, which regulates, in accordance with the principle of secularism, the wearing of symbols or clothing displaying religious affiliation in State schools, both primary and secondary (Article L. 141-5-1 of the National Education Code and implementing circular of 18 May 2004). Other provisions remaining applicable are those of the charter of hospitalised patients, annexed to the circular of 2 March 2006 on the rights of hospitalised patients, and those of the circular of 2 February 2005 on secularism in health institutions.
(b) Definition of public places
Section 2 of the Law states that ‘public places comprise the public highway and any places open to the public or assigned to a public service’.
The notion of the public highway requires no comment. It should be pointed out that, with the exception of those assigned to public transport, the vehicles that use public highways are regarded as private places. A person who conceals his or her face in a private car is thus not committing the offence referred to in the Law. That situation may, however, be covered by the provisions of the Road-Traffic Code stipulating that the driving of a vehicle must not present any risks for public safety.
Places open to the public are those places to which access is unrestricted (beaches, public gardens, public walkways, etc.) and places to which access is possible, even conditionally, in so far as any person who so wishes may meet the requirement (for example, by paying for a ticket to enter a cinema or theatre). Commercial premises (cafés, restaurants, shops), banks, stations, airports and the various means of public transport are thus public places.
Places assigned to a public service are the premises of any public institutions, courts and tribunals and administrative bodies, together with any other bodies responsible for providing public services. They include, in particular, the premises of various public authorities and establishments, local government bodies and their public establishments, town halls, courts, prefectures, hospitals, post offices, educational institutions (primary and secondary schools, universities), family benefit offices, health insurance offices, job centres, museums and libraries.
2. Lack of restriction as regards freedom of religion in places of worship
Where they are open to the public, places of worship fall within the scope of the Law. The Constitutional Council has found, however, that ‘prohibiting the concealment of the face in public places cannot, without excessively contravening Article 10 of the 1789 Declaration, restrict the exercise of religious freedom in places of worship open to the public’.
3. Sanction for the offence of concealing one’s face
Section 3 of the Law provides that any breach of the prohibition of face concealment in public places is punishable by a fine, at the rate applying to second-class petty offences (150 euros maximum). The imposition of this fine falls within the jurisdiction of the community courts (juridictions de proximité).
An obligation to follow a citizenship course may also be imposed by the same courts in addition to or instead of the payment of a fine. Such courses, adapted to the nature of the offence committed, must, in particular, ensure that those concerned are reminded of the Republican values of equality and respect for human dignity.
4. Sanction for the use of duress
The fact of concealing one’s face in a public place may be the result of duress against the person concerned, and the third party will then have committed the offence of forcing a person to conceal his or her face.
This offence, provided for in section 4 of the Law (inserting a new Article 225-4-10 into the Criminal Code), is punishable by one year’s imprisonment and a fine of 30,000 euros. Where the offence is committed against a minor, such punishment is increased to two years’ imprisonment and a fine of 60,000 euros.
The punishing of such conduct is part of the public authorities’ policy to combat with vigour any form of discrimination and violence against women, which constitute unacceptable infringements of the principle of gender equality.
II. Requisite conduct in public services
(a) Role of the director
In the context of the powers that he or she holds to ensure the proper functioning of the department, the director will be responsible for ensuring compliance with the provisions of the Law of 11 October 2010 and with the measures taken, in particular the updating of internal rules, for the purposes of its implementation.
It will be the director’s duty to present and explain the spirit and logic of the Law to the staff under his or her authority, to ensure that they observe its provisions and are in a position to enforce compliance therewith, in the best possible conditions, by the users of the public service.
It will also be for the director to ensure that the appropriate information envisaged by the Government in the form of posters and leaflets is made available on premises that receive or are open to members of the public.
(b) Restriction of access to premises assigned to public services
From 11 April 2011 staff responsible for a public service, who may already have had to ask individuals to show their faces momentarily to prove their identity, will be entitled to refuse access to the service to anyone whose face is concealed.
In the event that the person whose face is concealed has already entered the premises, it is recommended that staff remind that person of the applicable rules and ask him or her to observe the Law, by uncovering the face or leaving the premises. A person whose face is concealed cannot benefit from the delivery of public services.
However, the Law does not confer on staff, in any circumstances, the power to oblige a person to show his or her face or leave. The exercise of such constraint would constitute an illegal act and could entail criminal proceedings. It is therefore absolutely forbidden.
When faced with a refusal to comply, the staff member or his or her line manager must call the police or gendarmerie, who are exclusively entitled to take note and make a report of the offence and, if appropriate, to verify the identity of the person concerned. Specific instructions are addressed for this purpose by the Interior Minister to the police forces.
Denial of access to a service can be reconsidered only to take account of particular emergencies, in particular those of a medical nature.
III. ― Informing the public
The period leading up to the entry into force of the ban on the concealment of the face should be used to ensure that members of the public are suitably informed.
(a) General information
A poster, distributed on paper or electronically by ministries, within their respective networks, will have to be displayed, in a visible manner, on premises open to the public or assigned to a public service.
The poster carries the slogan ‘facing up to life in France’ (‘la République se vit à visage découvert’) and indicates that the ban on concealing the face in public places will enter into force on 11 April 2011.
This poster may be supplemented, for the benefit of those who wish to have more precise information on the provisions of the Law, by a leaflet distributed in the various services in the same manner and according to the same procedure as the poster.
For travellers wishing to visit France, this leaflet will also be available in English and Arabic at French consulates abroad.
These two documents providing general information will also be accessible via the website www.visage-decouvert.gouv.fr, which will also include a section providing answers to the various questions raised by the implementation of the Law.
(b) Information for persons directly concerned by face concealment
A scheme for the provision of information to the persons concerned has been prepared by the Ministry for Towns and Cities, in coordination with the Ministry for Solidarity and Social Cohesion and the Interior Ministry.
The aim of this information, awareness and individual support scheme is to foster dialogue, in order to persuade the small minority who conceal their face to comply with the ban laid down by Parliament. This dialogue is not a negotiation; the idea is to bring those concerned, by a process of explanation, to renounce, of their own accord, a practice which is at odds with the values of the Republic.
The scheme, about which specific instructions have been issued by the Minister for Towns and Cities, relies in particular on associations and community networks in the field of women’s rights, in particular the network of information centres on women’s rights (centres d’information des droits des femmes – CDIFF), the 300 ‘prefect’s delegates’ and ‘relay adults’ working in local communities. It will also mobilise all those working in social mediation, especially the mediators of the national education system.
The aim is to provide full information on the Law and personal support to those individuals who cover their face. ...”
D. Other circulars
32. On 11 March 2011 the Minister of Justice and Freedoms issued a Circular “concerning the presentation of the provisions on the offence of concealing one’s face in public places”. It was addressed, for action, to public prosecutors at the appellate and lower courts, and for information, to the presidents of the appellate courts and of the tribunaux de grande instance, among others. The Circular presented the offence of concealing one’s face in public places. It also contained indications as to the implementation of the new punitive provisions, with regard to the policy for establishing the offence and prosecuting the offender and the organisation of the citizenship courses.
33. On 31 March 2011 the Minister of the Interior, Overseas Administration, Local Government and Immigration addressed to the Commissioners of Police, prefects and High Commissioners (of Overseas Territories) a Circular for the purpose of “giving instructions to officials within [that Ministry], and in particular to police forces, for the application of the Law of 11 October 2010”. It contained, in particular, indications about the notion of concealing one’s face and about the places in which the ban applied, emphasising that a person present in a place of worship for the observance of religion was not liable to be charged, and “recommend[ing] that police forces avoid any intervention in the immediate vicinity of a place of worship which could be interpreted as an indirect restriction on freedom of worship”.
E. Judgment of the Criminal Division of the Court of Cassation of 5 March 2013
34. The Court of Cassation was called upon to examine an appeal on points of law (no. 12-808091) against a judgment of the Community Court of Paris, dated 12 December 2011, in which a woman had been ordered to follow a two-week citizenship course for wearing the full-face veil with the aim of protesting against the Law of 11 October 2010 in the context of a demonstration for that purpose outside the Elysée Palace. Examining the arguments submitted by the appellants under Article 9 of the Convention, the Criminal Division found as follows on 5 March 2013:
“...whilst the Community Court was wrong to disregard the religious reasons for the impugned demonstration, the judgment should not be overruled in so far as, although Article 9 of the Convention ... guarantees the exercise of freedom of thought, conscience and religion, paragraph 2 thereof stipulates that this freedom is subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others; ... this is the case for the Law prohibiting the full covering of the face in public places, as it seeks to protect public order and safety by requiring everyone who enters a public place to show their face; ...”
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. Resolution 1743 (2010) and Recommendation 1927 (2010) of the Parliamentary Assembly of the Council of Europe and Viewpoint of the Commissioner for Human Rights of the Council of Europe
1. Resolution 1743 (2010) and Recommendation 1927 (2010) of the Parliamentary Assembly of the Council of Europe on Islam, Islamism and Islamophobia in Europe
35. Adopted on 23 June 2010, Resolution 1743 (2010) states, in particular:
“14. Recalling its Resolution 1464 (2005) on women and religion in Europe, the Assembly calls on all Muslim communities to abandon any traditional interpretations of Islam which deny gender equality and limit women’s rights, both within the family and in public life. This interpretation is not compatible with human dignity and democratic standards; women are equal to men in all respects and must be treated accordingly, with no exceptions. Discrimination against women, whether based on religious traditions or not, goes against Articles 8, 9 and 14 of the Convention, Article 5 of its Protocol No. 7 and its Protocol No. 12. No religious or cultural relativism may be invoked to justify violations of personal integrity. The Parliamentary Assembly therefore urges member states to take all necessary measures to stamp out radical Islamism and Islamophobia, of which women are the prime victims.
15. In this respect, the veiling of women, especially full veiling through the burqa or the niqab, is often perceived as a symbol of the subjugation of women to men, restricting the role of women within society, limiting their professional life and impeding their social and economic activities. Neither the full veiling of women, nor even the headscarf, are recognised by all Muslims as a religious obligation of Islam, but they are seen by many as a social and cultural tradition. The Assembly considers that this tradition could be a threat to women’s dignity and freedom. No woman should be compelled to wear religious apparel by her community or family. Any act of oppression, sequestration or violence constitutes a crime that must be punished by law. Women victims of these crimes, whatever their status, must be protected by member states and benefit from support and rehabilitation measures.
16. For this reason, the possibility of prohibiting the wearing of the burqa and the niqab is being considered by parliaments in several European countries. Article 9 of the Convention includes the right of individuals to choose freely to wear or not to wear religious clothing in private or in public. Legal restrictions to this freedom may be justified where necessary in a democratic society, in particular for security purposes or where public or professional functions of individuals require their religious neutrality or that their face can be seen. However, a general prohibition of wearing the burqa and the niqab would deny women who freely desire to do so their right to cover their face.
17. In addition, a general prohibition might have the adverse effect of generating family and community pressure on Muslim women to stay at home and confine themselves to contacts with other women. Muslim women could be further excluded if they were to leave educational institutions, stay away from public places and abandon work outside their communities, in order not to break with their family tradition. Therefore, the Assembly calls on member states to develop targeted policies intended to raise Muslim women’s awareness of their rights, help them to take part in public life and offer them equal opportunities to pursue a professional life and gain social and economic independence. In this respect, the education of young Muslim women as well as of their parents and families is crucial. It is especially necessary to remove all forms of discrimination against girls and to develop education on gender equality, without stereotypes and at all levels of the education system.”
36. In its Recommendation 1927 (2010), adopted on the same day, the Parliamentary Assembly of the Council of Europe asked the Committee of Ministers of the Council of Europe, in particular, to:
“3.13. call on member states not to establish a general ban of full veiling or other religious or special clothing, but to protect women from all physical and psychological duress as well as to protect their free choice to wear religious or special clothing and ensure equal opportunities for Muslim women to participate in public life and pursue education and professional activities; legal restrictions on this freedom may be justified where necessary in a democratic society, in particular for security purposes or where public or professional functions of individuals require their religious neutrality or that their face can be seen.”
2. Viewpoint of the Commissioner for Human Rights of the Council of Europe
37. The Commissioner for Human Rights of the Council of Europe, published the following “Viewpoint” (see Human rights in Europe: no grounds for complacency. Viewpoints by Thomas Hammarberg, Council of Europe Commissioner for Human Rights, Council of Europe Publishing, 2011, pp. 39-43):
“Prohibition of the burqa and the niqab will not liberate oppressed women, but might instead lead to their further exclusion and alienation in European societies. A general ban on such attire constitutes an ill-advised invasion of individual privacy and, depending on its terms, also raises serious questions about whether such legislation is compatible with the European Convention on Human Rights.
Two rights in the Convention are particularly relevant to this debate about clothing. One is the right to respect for one’s private life and personal identity (Article 8). The other is the freedom to manifest one’s religion or belief ‘in worship, teaching, practice and observance’ (Article 9).
Both Convention articles specify that these rights can only be subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Those who have argued for a general ban of the burqa and the niqab have not managed to show that these garments in any way undermine democracy, public safety, order or morals. The fact that a very small number of women wear such clothing has made such proposals even less convincing.
Nor has it been possible to prove that women wearing this attire are victims of more gender repression than others. Those interviewed in the media have presented a diversity of religious, political and personal arguments for their decision to dress as they do. There may of course be cases where women are under undue pressure to dress in a certain way – but it has not been shown that a ban would be welcomed by them.
There is of course no doubt that the status of women is an acute problem – and that this problem may be particularly true in relation to some religious communities. This needs to be discussed, but prohibiting the supposed symptoms – such as clothing – is not the way to do it. Dress, after all, may not reflect specific religious beliefs, but the exercise of broader cultural expression.
It is right and proper to react strongly against any regime ruling that women must wear these garments. This is in clear contravention of the Convention articles cited above, and is unacceptable, but it is not remedied by banning the same clothing in other countries.
The consequences of decisions in this area must be assessed. For instance, the suggestion that women dressed in a burqa or niqab be banned from public institutions like hospitals or government offices may result in these women avoiding such places entirely, and that is clearly wrong.
It is unfortunate that in Europe, public discussion of female dress, and the implications of certain attire for the subjugation of women, has almost exclusively focused on what is perceived as Muslim dress. The impression has been given that one particular religion is being targeted. Moreover, some arguments have been clearly Islamophobic in tenor and this has certainly not built bridges nor encouraged dialogue.
Indeed, one consequence of this xenophobia appears to be that the wearing of full cover dress has increasingly become a means of protesting against intolerance in our societies. An insensitive discussion about banning certain attire seems merely to have provoked a backlash and a polarisation in attitudes.
In general, states should avoid legislating on dress, other than in the narrow circumstances set forth in the Convention. It is, however, legitimate to regulate that those who represent the state, for instance police officers, do so in an appropriate way. In some instances, this may require complete neutrality as between different political and religious insignia; in other instances, a multi-ethnic and diverse society may want to cherish and reflect its diversity in the dress of its agents.
Obviously, full-face coverage may be problematic in some occupations and situations. There are particular situations where there are compelling community interests that make it necessary for individuals to show themselves for the sake of safety or in order to offer the possibility of necessary identification. This is not controversial and, in fact, there are no reports of serious problems in this regard in relation to the few women who normally wear a burqa or a niqab.
A related problem arose in discussion in Sweden. A jobless Muslim man lost his subsidy from a state agency for employment support because he had refused to shake the hand of a female employer when turning up for a job interview. He had claimed that his action was grounded in his religious faith.
A court ruled later, after a submission from the ombudsman against discrimination, that the agency decision was discriminatory and that the man should be compensated. Though this is in line with human rights standards, it was not readily accepted by the general public and a controversial public debate ensued.
It is likely that issues of this kind will surface increasingly in the coming years and it is healthy that they should be openly discussed – as long as Islamophobic tendencies are avoided. However, such debates should be broadened to include the promotion of greater understanding of different religions, cultures and customs. Pluralism and multiculturalism are essential European values, and should remain so.
This in turn may require more discussion of the meaning of respect. In the debates about the allegedly anti-Muslim cartoons published in Denmark in 2005, it was repeatedly stated that there was a contradiction between demonstrating respect for believers whilst also protecting freedom of expression as stipulated in Article 10 of the European Convention.
The Strasbourg Court analysed this dilemma in the famous case of Otto-Preminger-Institute v. Austria in which it stated that ‘those who choose to exercise the freedom to manifest their religion ... cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith’.
In the same judgment the Court stated that consideration should be given to the risk that the right of religious believers – like anyone else – to have their views respected may be violated by provocative portrayals of objects of religious significance. The Court concluded that ‘such portrayals can be regarded as malicious violation of the spirit of tolerance, which must also be a feature of democratic society’.
The political challenge for Europe is to promote diversity and respect for the beliefs of others whilst at the same time protecting freedom of speech and expression. If the wearing of a full-face veil is understood as an expression of a certain opinion, we are in fact talking here about the possible conflict between similar or identical rights – though seen from two entirely different angles.
In Europe, we seek to uphold traditions of tolerance and democracy. Where conflicts of rights between individuals and groups arise, it should not be seen in negative terms, but rather as an opportunity to celebrate that rich diversity and to seek solutions which respect the rights of all involved.
A prohibition of the burqa and the niqab would in my opinion be as unfortunate as it would have been to criminalise the Danish cartoons. Such banning is alien to European values. Instead, we should promote multicultural dialogue and respect for human rights.”
B. The United Nations Human Rights Committee
38. In its General Comment no. 22, concerning Article 18 of the International Covenant on Civil and Political Rights (freedom of thought, conscience and religion), adopted on 20 July 1993, the Human Rights Committee emphasised as follows:
“... 4. The freedom to manifest religion or belief may be exercised ‘either individually or in community with others and in public or private’. The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. ... The observance and practice of religion or belief may include not only ceremonial acts but also such customs as ... the wearing of distinctive clothing or headcoverings ...
8. Article 18 (3) permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. The freedom from coercion to have or to adopt a religion or belief and the liberty of the parents a