Has the European Court of Human Rights Opened the Door to a General Prohibition of the Full-Face Veil in Spain?

In: European Court of Human Rights|European Union|Human Rights|Student blog

15 Jun 2015

 

Libyan_girl_wearing_a_niqab_(Libya,_2011-06-07)

The debate surrounding the prohibition of the full-face veil in all public spaces is far from settled both in Spain and in Europe. The European Court of Human Rights (ECtHR) analyzed the case S.A.S v. France on 1 July 2014. For the first time (previously the Court has ruled on headscarf regulations pertaining to e.g. the more specific school context), the ECtHR analyzed the claim of a Muslim woman, who voluntarily wore the niqab, alleging that the blanket burqa-ban passed in France breached her right to manifest her Islamic faith according to article 9 European Convention of Human Rights (ECHR). The ECtHR concluded that the principle of “living together” is a legitimate aim to prohibit the burqa and niqab in France, provided that wearing the full-face veil hinders communication among individuals.

On 14 February 2013, on the contrary, the Spanish Supreme Court rejected that a municipality could ban the use of the full-face veil, ruling that such a ban interferes with article 16 of the Spanish Constitution, which guarantees the right to freedom of religion. While the Spanish Supreme Court has the jurisdiction to assess whether a municipality has overreached its powers in passing a local burqa-ban, it does not have the authority to rule if a general prohibition of the burqa and niqab in all public spaces is constitutional. The latter falls under the jurisdiction of the Spanish Constitutional Court, which has not yet ruled on the matter.

Due to the controversial nature of this issue, this post aims to question the pertinence of prohibiting the burqa and niqab in all public spaces in Spain. Specifically, the notion of whether a burqa-ban is suitable, necessary and proportional to achieve the principle of “living together”, introduced by the ECtHR, is analyzed.

 The ECtHR’s Introduction of “Living Together” as a Legitimate Aim

In S.A.S. v. France, the ECtHR held that “respect for the minimum requirements of life in society”, or “living together”, may limit the right to religious freedom (S.A.S. v. France, §121). While article 9(2) ECHR does not establish “living together” as a legitimate aim to limit the right to religious freedom, the Court linked it to the “protection of the rights and freedoms of others”, a legitimate aim actually found in article 9(2) ECHR (ibid., §121). In S.A.S. v. France, the Court introduced “living together” as a legitimate aim to ban the burqa and niqab, on the basis that wearing the full-face veil hinders communication among individuals. Specifically, the Court pointed out that the “principle of interaction between individuals … is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society” (ibid., §153).

The Court recognized that the legitimate aim of “living together” could be interpreted in a flexible manner, which consequently may lead to the abuse of this provision (Ibid., §122.). Therefore, the Court conducted a detailed analysis to determine whether “living together” was a legitimate aim. Firstly, the Court established that since very few women actually wear the burqa and niqab in France, a general prohibition may be excessive (ibid., §145). Secondly, the Court recognized the negative effects of such a prohibition, such as social isolation and the restriction of autonomy for women who voluntarily wear the veil (ibid., §146.). Thirdly, the Court raised its concern about the islamophobic manifestations that took place before the enactment of the French law of 11 October 2010 (ibid., §149).

Despite the previous acknowledgements, the Court finally accepted “living together” as a legitimate aim, alleging that “the Law of 11 October 2010 does not affect the freedom to wear in public any garment or item of clothing … which does not have the effect of concealing the face.” Furthermore, the Court pointed out that the criminal consequences for not complying with the law were “among the lightest that could be envisaged” (ibid., §151).

 A Critical Analysis of the Introduction of “Living Together” as a Legitimate Aim

The following lines will analyze the inconsistencies in the argumentation regarding “living together” as a legitimate aim (some authors have also expressed their concerns regarding the S.A.S. v. France ruling. See, Brems, Eva (2014). “Face Veil Bans in the European Court of Human Rights: The Importance of Empirical Findings”, Journal of Law and Policy, 22, pp. 517-551. Ouald Chaib, Saïla (2014). “S.A.S. v. France: Missed Opportunity to Do Full Justice to Women Wearing a Face Veil”, Blog of Strasbourg Observers. Berry, Stephanie (2014). “S.A.S. v France: The French Burqa Ban and Religious Freedom”, Blog of the European Journal of International Law). Furthermore, the position held by the Spanish Supreme Court will be examined, for it denied the “disturbance of public tranquility and peace” as a legitimate aim to prohibit the full-face veil in all public spaces (SSC 14 February 2013, ground 10º.).

Firstly, the ECtHR referred to the exceptions listed in article 9(2) ECHR as “exhaustive and … restrictive” (S.A.S. v. France, §113). Nevertheless, the Court did not follow its own recommendation, for it introduced “living together” as a legitimate aim to limit one’s freedom of religion. Indeed, in their dissenting opinion, Judges Nussberger and Jäderblom considered the concept of “living together” to be “far fetched and vague” (S.A.S. v. France, dissenting opinion, §5).

Secondly, the ECtHR held that the criminal provisions for those who violated the law of 11 October 2010 “were among the lightest” (S.A.S. v. France, §151). However, Judges Nussberger and Jäderblom disagreed, pointing out “where the wearing of the full-face veil is a recurrent practice, the multiple effect of successive penalties has to be taken into account” (S.A.S. v. France, dissenting opinion, §22.). In this respect, the Spanish Supreme Court ruled that every criminal provision must be interpreted restrictively and follow the principle of proportionality (SSC 14 February 2013, ground 5º.). In the dissenting opinion regarding the case of S.A.S. v. France, the Judges indirectly referred to the principle of proportionality, stating that “the [French] Government have not explained why it would have been impossible to apply less restrictive measures, instead of criminalizing the concealment of the face in all public places” (S.A.S. v. France, dissenting opinion, §24). Particularly, these Judges criticized that the ECtHR did not adequately explore alternative measures such as raising awareness and education for Muslim women (ibid., §24).

Thirdly, the ECtHR stated in S.A.S. v. France that “pluralism, tolerance, and broadmindedness are hallmarks of a democratic society” (ibid., §24.). Nonetheless, the Court recognized “living together” as a legitimate aim for a general prohibition, which in fact justifies a prohibitive law that hinders pluralism and diminishes the freedom of choice of women who voluntarily decide to wear the burqa or niqab. Similar criticism was raised in the dissenting opinion, whereby introducing the principle of “living together” as a legitimate aim was “interpreted as a sign of selective pluralism and restricted tolerance …; it [the ECtHR] has not sought to ensure tolerance between the vast majority and the small minority, but had prohibited what is seen as a cause of tension” (S.A.S. v. France, dissenting opinion, §14.). On the contrary, the Spanish Supreme Court in its ruling did ensure such tolerance and the protection of minorities (SSC 14 February 2013, ground 10º). To do so, the Spanish Supreme Court cited the case of Leyla Sahin v. Turkey, where the ECtHR established that “democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position” (Leyla Sahin v. Turkey, §108.). Therefore, the ruling of the Spanish Supreme Court clearly differs from the position adopted by the ECtHR in S.A.S. v. France. The ECtHR stated that “the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society” (S.A.S. v. France, §153.). While the ECtHR sided with the majority, the Spanish Supreme Court aimed to protect the interests of the minority (SSC 14 February 2013, ground 10º).

Lastly, the ECtHR implemented a burqa-ban on the basis that it hinders communication in society. However, as Judges Nussberger and Jäderblom expressed in their dissenting opinion of S.A.S. v. France, “while communication is admittedly essential for life in society, the right to respect for private life also comprises the right not to communicate … – the right to be an outsider” (S.A.S. v. France, dissenting opinion, §8). In this regard, the Spanish Supreme Court considered that the “disturbance of public tranquility and peace” is difficult to justify, for if it is assumed that everyone has the right to see the face of another, that would imply denying the right of each person not to show it (SSC 14 February 2013, ground 10º). The Spanish Supreme Court ruled that it was not sufficiently demonstrated that the full-face veil provoked a “disturbance of public tranquility and peace”.

—–

The recent legitimate aim of “living together” introduced by the ECtHR in S.A.S v. France, seems to justify a general prohibition of the Islamic full-face veil. However, I believe that these types of generalized prohibitions, apart from dangerously opening the door to prohibiting the full-face veil in other countries, will not eradicate a tradition with strong cultural and religious roots among Muslim women. Hidden under the disguise of a general prohibition is not only a fear of discrimination, but an apprehension to pluralism at its deepest core, which makes uncovering the veil a more comfortable option for westerners. This hesitation to what is foreign is that what must be altered, to learn to value and appreciate the beauty and uniqueness of that which is different. It is only when foreign ideas are viewed with acceptance and respect under a universal vision, that integration and mutual tolerance will thrive, steering far away from prejudice and inequality (See Dogru v. France, §62. See also S.A.S. v. France, §128). In fact, a general ban implies shunning that which opposes one’s views, with the idea that the foreigner should adopt the traditions of the host country. Therefore, instead of restricting such a manifestation of religion, efforts should shift toward a more inclusive approach to strengthen dialogue between Spain and the Muslim organizations. Such an approach would encourage communication and understanding of wearing the full-face veil throughout Spain, promoting values of respect, acceptance, and coexistence in a social, plural, and democratic state.

 David Fernandez Rojo

This blog post is based on the research the author conducted for his Master Thesis at Erasmus University Rotterdam, which led to the publication “Pertinence of a General Prohibition of the Burqa and Niqab in Spain: A Human Rights Perspective” in the Yearbook on Humanitarian Action and Human Rights. David Fernandez Rojo is currently a PhD Student at the University of Deusto.

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