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S.A.S. v France: Living Together or Increased Social Division?

Published on July 7, 2014        Author: 

On 1 July, the European Court of Human Rights (ECtHR) has delivered, in a public hearing, its judgment in the case of S.A.S. v France. This case is a challenge of the French legislation prohibiting the wearing of face-covering clothing in all public spaces. In a post on this blog, Stephanie Berry discusses the case and points out a number of positive developments, including the balanced and well-reasoned nature of the judgment, the rejection of the gender equality and human dignity arguments for the burqaban, as she refers to the French law, and the consideration that this ban was not necessary for public safety in the absence of concrete evidence. However, Berry criticises the ECtHR for accepting that the ban pursues the legitimate aim of ‘living together’ under the ‘protection of the rights and freedoms of others’. Berry points out that this concept pursues a distinctly assimilationist agenda. I agree with Berry that this is a worrying development. In this post, I examine this concept of ‘living together’ in more detail and explain why this is such a worrying development. I will not discuss other aspects of the judgment.

First of all, what does this concept mean? The ECtHR mentions that the ‘Report on the wearing of the full-face veil on national territory’ criticises the wearing of the full-face veil as ‘a practice at odds with the values of the Republic’ and as ‘a denial of fraternity, constituting a negation of contact with others and a flagrant infringement of the French principle of living together’ (para. 17). It also refers to the explanatory memorandum to the relevant law, which states that ‘the wearing of the full veil is the sectarian manifestation of a rejection of the values of the Republic’; that ‘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’; and, that it ‘falls short of the minimum requirement of civility necessary for social interaction’ (para. 25). The French Government stated that one of the aims of the law was the observance of the minimum requirements of life in society because the face plays a significant role in human interaction, and the effect of concealing one’s face in public places is to break the social tie and to manifest a refusal of the principle of ‘living together’ (para 82, and for a similar argument from the Belgian government: para. 87).

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Banning Niqabs in Public Spaces

Published on December 6, 2013        Author: 

Erica Howard

Dr Erica Howard is reader in law at Middlesex University and the author of Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Routledge, 2012).

 

Recently the wearing of the niqab, the face-covering veil worn by some Muslim women, has been in the news again after the judgment on the wearing of the niqab by a defendant in criminal proceedings (R v D(R), 16/09/2013, judgment H.H. Judge Peter Murphy). In this case, Judge Murphy applied Article 9 of the European Convention on Human Rights 1950 (ECHR). He accepted, following the case law of the European Court of Human rights (ECtHR) on Article 9 ECHR (see, for example, Eweida and Others v the UK; Dahlab v Switzerland and Sahin v Turkey), that the wearing of the niqab was a manifestation of the defendant’s religion and that her right to manifest her religion had been interfered with. He then examined whether the restriction was justified under Article 9(2) using a proportionality test, balancing D’s right to manifest her religion against the interests of justice in conducting a fair trial for everyone involved.

So Murphy followed the approach of the ECtHR. But will the ECtHR do the same in the case of S.A.S. v France, which challenges the French legislation prohibiting the wearing of face-covering clothing in all public spaces? The case was heard by the Grand Chamber on 27 November 2013, after the Chamber, in May 2013, relinquished jurisdiction to the Grand Chamber (for a summary of this hearing see here). It is, at present, not known when the judgment in this case will be published.

S.A.S., a devout Muslim who wears the niqab in accordance with her religious faith, culture and personal convictions, was fined for wearing the face covering veil in public and claims a violation of a number of her rights under the ECHR, including her right to manifest her religion under Article 9. As, in my view, Article 9 is the most important and relevant for this case, I will only discuss this article here. Read the rest of this entry…

 
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The European Court of Human Rights Gets It Right: A Comment on Eweida and Others v the United Kingdom

Published on January 19, 2013        Author: 

Dr Erica Howard is senior lecturer in law at Middlesex University and the author of Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Routledge, 2012).

The European Court of Human Rights has delivered its Chamber judgment in the case of Eweida and Others v. the United Kingdom application nos. 48420/10, 59842/10, 51671/10 and 36516/10).

These cases concerned four practicing Christians. Ms Eweida, who worked for British Airways as check in staff, and Ms Chaplin, who worked as a nurse, both wanted to wear a cross in a visible way with their uniforms. Ms Ladele, a registrar of births, deaths and marriages, and Mr McFarlane, a relationship and psycho-sexual counsellor, both believed that homosexual relationships are contrary to God’s law and complained that they had been dismissed for refusing to carry out certain parts of their duties which they considered condoned homosexuality.

The European Court of Human Rights held that Ms Eweida’s and Ms Chaplin’s wish to wear a cross in a visible manner was a manifestation of their belief (paragraphs 89 and 97). In relation to Ms Eweida, the Court held that a fair balance had not been struck between her right to freely manifest her religion and British Airways wish to protect its corporate image and that the domestic courts had given too much weight to the latter (paragraph 94). Therefore, her right to manifest her religion under Article 9 was violated and it was not necessary to examine the claim under article 14 separately (paragraph 95).

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