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. The ECtHR should, in relation to Article 9, follow its own case law and accept that the wearing of the face veil is a manifestation of applicant’s religion and that the law banning the wearing of face covering clothing in public places restricts her right to manifest her religion. It should then assess the ban under Article 9(2).
Article 9(2) determines that the freedom to manifest one’s religion or belief can be restricted if the restriction is prescribed by law and is necessary in a democratic society in the interest of public safety, for the protection of public order, public health or morals or for the protection of the rights and freedoms of others. ‘Necessary in a democratic society’ has been interpreted as meaning that the interference complained of must correspond to a pressing social need. This means that the interference must be proportionate to the legitimate aim pursued and be justified by relevant and sufficient reasons. These legitimate aims are summed up in Article 9(2) as mentioned above.
Applying this standard to S.A.S. v France, it is obvious that the ban is prescribed by law. But is it necessary in a democratic society in the interests of public safety or for the protection of public order, public health or morals or for the protection of the rights and freedoms of others? The French government has brought forward three main objectives: wearing a face veil is against Republican values, especially secularism; it poses a threat to public safety, security and public order; and, it is contrary to the dignity of women and gender equality (see Explanatory Memorandum, No. 2520, 19 May 2010). These reasons could be brought under the protection of public safety and public order and the rights and freedoms of others, and the ECtHR will probably accept these as legitimate aims as it has done in previous cases (see, for example, Dahlab v Switzerland, Sahin v Turkey, Kervanci and Dogru v France, Aktas and Others v France).
The next step is then to examine whether the ban is a proportionate and necessary means to achieve these legitimate aims? The ECtHR should thus use a proportionality test and should balance the applicant’s (Ms S.A.S.’s) right to manifest her religion and the importance of this right for her against these objectives. Does the ban pass this test?
In Arslan and others v Turkey, 127 members of a religious group were convicted for touring the streets of Ankara while wearing turbans and distinctive trousers and tunics, a dress code based on their religious beliefs. The ECtHR found that Turkey had violated Article 9. It held that the interference with the applicants’ religious manifestation was not justified because the Turkish government had not convincingly established the necessity of the disputed restriction and the interference was not based on sufficient reasons (para. 52). One of the issues emphasized by the ECtHR was that there was a distinction between wearing religious dress in public areas open to all and wearing it in schools or other public establishments where religious neutrality might take precedence over the right to manifest one’s religion or belief (para. 49). This suggests that bans in schools and other public establishments might be justified, but that a blanket ban in all public spaces is not. The ECtHR also considered that there was no evidence that the applicants had represented a threat to public order or that they had been involved in proselytising by exerting inappropriate pressure on passers-by (para. 50).
Applying this to S.A.S. v France, the ban also concerns the wearing of religious dress in public areas open to all and there is also no evidence that Ms S.A.S. was involved in any improper proselytism. The ECtHR should follow Arslan and find that a blanket ban in all public spaces does not pass the justification test under article 9(2) because it is not a proportionate and necessary means to achieve a legitimate aim. A blanket ban in all public spaces is not necessary to pursue the aims sought and partial bans could serve these aims just as well. Support for this can be found in a 2010 study on the legal grounds for banning the face veil by the French Conseil D’Etat, a body which, amongst other tasks, advises the French government on the preparation of bills. This body held that public security and public safety on their own could not provide a basis for a general ban on the face veil, although they would support partial bans in certain circumstances.
However, it remains to be seen if the ECtHR will indeed follow the decision in Arslan v Turkey. It could also take another approach. In relation to restrictions on Convention rights, the ECtHR allows states a certain margin of appreciation to make the initial assessment of what is necessary in a democratic society because the national authorities are considered to be better placed to assess this. But this margin is not unlimited and the ECtHR is empowered to give the final ruling.
The width of the margin of appreciation is, however, not always the same and the case law suggests that the ECtHR allows a wider margin of appreciation in relation to restrictions on the freedom to manifest one’s religion in Article 9(2) ECHR than in relation to restrictions on rights in other articles, like Article 8 (right to respect for private and family life), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association), which also contain the condition that a restriction must be ‘necessary in a democratic society’ (see on this, for example, T. Lewis, ICLQ 56, 2, 2007, 397-401). The main reason for this difference given is the lack of consensus on religious issues across Europe (see: Otto-Preminger-Institute v Austria).
It could very well be that the ECtHR will not examine the question of justification in any detail, but will afford France a wide margin of appreciation to determine what is necessary in a democratic society and then hold that France has not exceeded the margin of appreciation available.
In my view, following this second option, not examining the justification and proportionality of the French law, would be using the mechanism of the margin of appreciation to avoid making a decision in a politically sensitive area. The ECtHR should not abdicate responsibility for the protection of the freedom to manifest one’s religion in this manner, but should, instead, follow Arslan v Turkey and apply a rigorous justification and proportionality test.