SAS v France: Does Anything Remain of the Right to Manifest Religion?

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Niqab23The finding by the European Court of Human Rights (ECtHR) in SAS v France that the so-called ‘French burqa ban’ did not violate the European Convention on Human Rights (ECHR) will not surprise many in the field of human rights. However, the judgment itself contains a number of developments and departures from the Court’s previous jurisprudence that warrant further consideration. In particular, the conclusion that the right to manifest religion may be restricted on the ground of ‘living together’ presents a worrying development, if this right is to have any practical meaning. (photo credit)

In SAS v France, the applicant challenged the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’), which prohibits the covering of the face in public. The case differs from previous cases concerning the right of Muslim women to manifest religion by wearing religious attire, as the law imposed a blanket ban which extended to the social sphere. The applicant argued that by preventing her from wearing the burqa the ban violated her rights under articles 3, 8, 9, 10, 11 and 14 ECHR. The ECtHR completely dismissed her claims under articles 3, 10 and 11 ECHR, and focused its attention on articles 8, 9 and 14 ECHR, with a notable emphasis on article 9, the right to freedom of religion or belief.

The ECtHR’s judgment in SAS v France, for the most part, is balanced, well-reasoned and provides a thorough consideration of the French government’s justifications for the restriction of the applicant’s right to manifest her religion: public safety and ‘respect for the minimum set of values of an open and democratic society’. The latter category comprises three separate elements: gender equality, human dignity and ‘respect for the minimum requirements of life in society’ or ‘living together’. Whilst public safety is found within articles 8(2) and 9(2) ECHR, as noted by the ECtHR,  ‘respect for the minimum set of values of an open and democratic society’ does not correspond with any of the permissible limitations on article 8 and 9 ECHR (paras 116-7). Consequently, the ECtHR interpreted this justification as falling with the broad ‘protection of the rights and freedoms of others’ (para 117).

While the ECtHR established that the ‘burqa ban’ was prescribed by law (para 112), it did not accept that the ban pursued the ‘legitimate aims’ of gender equality and human dignity (paras 119-120). Specifically, in the context of gender equality, the ECtHR took ‘the view, … that a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions’ (para 119). This marks a significant departure from the ECtHR’s jurisprudence in the hijab cases. InDahlab v Switzerlandthe ECtHR had held that the hijab ‘appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality’ . However, this approach was the subject of criticism, most notably by Judge Tulkens in her dissenting opinion in Leyla Şahın v Turkey:

It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. (para 12)

Neither Dahlab (a teacher) nor Sahin (a medical student) conformed to the idea of Muslim women as victims.  Yet, in thesecases, the ECtHR accepted that the hijab was contrary to gender equality, and disregarded the meaning attributed to it by the applicants. This position both patronised the applicants and essentialised Islam as a religion that discriminates against women. By refraining from analysing the applicant’s choice of religious attire in SAS v France, the ECtHR has avoided repeating these errors. It is contradictory that the ECtHR has been willing to accept that the hijab is contrary to gender equality but not the burqa. Nonetheless, this is a welcome development in the ECtHR’s jurisprudence and it is to be hoped that SAS v France signals the end of the ECtHR making sweeping value judgments about items of religious clothing.

The ECtHR’s dismissal of the French argument that the ‘burqa ban’is necessary to protect human dignity also highlights a change in the approach of the Court.  The ECtHR pointed to the lack of evidence to support the State’s assertion

that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others. (para 120)

 The Court further recognised

the expression of a cultural identity which contributes to the pluralism that is inherent in democracy. It notes in this connection the variability of the notions of virtuousness and decency that are applied to the uncovering of the human body. (para 120)

Thus, rather than adopting an essentialised view of Islam, the ECtHR recognised that pluralism entails the recognition of different perspectives.

While gender equality and human dignity were not found to be legitimate aims pursued by Loi no 2010–1192, public safety and ‘respect for the minimum requirements of life in society’ or ‘living together’ were (para 115, 121-2). Consequently, the ECtHR went on to consider whether the restriction on the applicant’s freedom of religion was ‘necessary in a democratic society’ and proportionate to the aim pursued.

As noted in an earlier post (here), the ECtHR in Mann Singh v Franceaccepted restrictions on the right to manifest religion on the grounds of public safety without requiring evidence of the necessity of the restriction. In SAS v France, the ECtHR accepted the justification that ‘a State may find it essential to be able to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud’ (para 139). However, although the restriction pursued a legitimate aim, the ECtHR did not find that it was necessary in a democratic society.  In the absence of ‘a general threat to public safety’, the ECtHR found that a blanket ban was disproportionate (para 139). Consequently, the ECtHR again departed from its previous jurisprudence to exercise a higher level of scrutiny of the legitimacy of the restriction and the evidence needed for a blanket ban. This perhaps indicates recognition of the serious consequences of a blanket ban and the need for particularly weighty reasons to justify it.

Even though the ECtHR was not willing to accept that the restriction on the applicant’s freedom of religion was justified on the ‘usual’ grounds of gender equality and public safety, it was willing to accept that the ‘burqa ban’ pursued the legitimate aim of ‘living together’ under ‘the protection of the rights and freedoms of others’. Despite not being listed in articles 8(2) and 9(2) as a legitimate justification for restricting a convention right, the ECtHR was willing to accept that this ‘far-fetched and vague’ concept (dissenting opinion para 5) fell within the ground of ‘the protection of the rights and freedoms of others’ (para 117). In assessing the scope of the concept, the Court recognised that

the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. (para 122)

Consequently, after recognising that the restriction only impacted a relatively small number of Muslim women (para 145) and that the law was framed in a neutral manner (para 151), the ECtHR accepted that the practice of wearing the burqa or niqab was ‘deemed incompatible, in French society, with the ground rules of social communication and more broadly the requirements of “living together”’ (para 153). Therefore, the ‘burqa ban’ was proportionate to the aim pursued (para 157) and the applicant’s rights had not been violated.

A number of inconsistencies in the ECtHR’s consideration of ‘living together’ warrant further elaboration. The Court expressly recognised ‘the flexibility of the notion of “living together” and the resulting risk of abuse’, and, thus, the need to ‘engage in a careful examination of the necessity of the impugned limitation’ (para 122). However, the Court’s recognition that it should ‘engage in a careful examination of the necessity’ of the ‘burqa ban’ was contradicted by the acceptance of the ‘wide margin of appreciation’ of France (para 155). It is difficult to see how these two concepts are compatible with one another. In particular, the ECtHR recognised that France had a wide margin of appreciation because the ‘burqa ban’ had been adopted following a democratic process (para 154). However, in Young, James and Webster v United Kingdom, the ECtHR established the position that

[a]lthough individual interests must on occasion be subordinated to those of a group, 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 minorities and avoids any abuse of a dominant position. (para 63)

Consequently, the democratic process does not per se justify restrictions being placed on the rights of minorities. In fact, in SAS v France, the ECtHR emphasises that it was ‘very concerned by the indications of some of the third-party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010’ (para 149). The ECtHR should in this instance have prioritised ‘a careful examination’ above the ‘wide margin of appreciation’ of the State, as legitimate concerns had been raised regarding prejudice and intolerance against Muslims in French society influencing the adoption of the law in question.  As surmised in the dissenting opinion of Judges Nussberger and Jäderblom:

While it is perfectly legitimate to take into account the specific situation in France, especially the strong and unifying tradition of the “values of the French Revolution” as well as the overwhelming political consensus which led to the adoption of the Law, it still remains the task of the Court to protect small minorities against disproportionate interferences. (para 20)

The concept of ‘living together’ used by France to justify the restriction placed on the religious manifestation of Muslim women pursues a distinctly assimilationist agenda. Although the ECtHR, throughout the judgment, reiterates that ‘pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”’, the ECtHR’s conclusion that there is no violation of the applicant’s rights legitimises a law which eliminates pluralism from the social sphere and, thus, the associated intolerance against Muslims. Indeed, as stressed in the Dissenting opinion ‘… the blanket ban could be interpreted as a sign of selective pluralism and restricted tolerance … It 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’(para 14).

In sum, the decision is a distinct departure from the ECtHR’s jurisprudence in other cases concerning the rights of Muslim women to wear religious attire. The rejection of France’s justifications based on gender equality and public safety makes progress towards rectifying some of the criticisms of the ECtHR’s earlier decisions in this area. However, the recognition of the concept of ‘living together’ as a justifiable ground for the restriction of the right to manifest religion is cause for concern. The concept, which does not find expression in the ECHR, has been prioritised above ‘concrete individual rights guaranteed by the Convention’ (para 2 dissenting opinion). This introduces the risk that the majority will be permitted to dictate that minorities assimilate in order to ‘live together’ instead of pursuing the more integrationist aims of ‘pluralism, tolerance and broadmindedness’.  Although the ECtHR has recognised the ‘risk of abuse’ of this concept, by affording France a wide margin of appreciation, the ECtHR has not heeded its own warning. The concept of ‘living together’ has the potential to proliferate into future judgments concerning the right to manifest religion, in a similar manner to the concept of secularism following the Sahin case (paras 115-16). As noted in an earlier post, the ECtHR must decide whether it is willing to protect the rights of Muslim women to manifest their religion. The addition of ‘living together’ to secularism, gender equality, public safety and the protection of children as permissible grounds of limitation in these cases gives little cause for optimism. What little remained of the right to manifest religion may just have been eroded.

 The author acted as a legal adviser for the applicant in the case of SAS v France. The opinions expressed in this post are the author’s own and do not necessarily represent the views of other members of the legal team.

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Miroslav Baros says

July 2, 2014

This is a good analysis but it failed to consider the phenomenon of perceiving the ECHR as a living instrument, the concept developed by the ECtHR, according to which the substance and content of the rights may be subject to the Court's interpretation of the new social, political and even technological and scientific developments (see Tyrer v. the United Kingdom (application No. 5856/72). This is effect means that the system of precedent does not operate internationally. This, to me is a right position because once states, parties to the ECHR gave the power and substantive authority to the Court to rule on what may be "legitimate" objective or justification or a particular content of a right it is difficult to see how they can then complain about the Court's capacity to make such determinations. I think therefore that analysing a decision from the perpsective: "it is a significant departure from earlier decisions" is not instrumental in assessing developments of the law.

Stephanie Berry says

July 2, 2014

Dear Miroslav,

Many thanks for your comment. My assertion that SAS ‘is a significant departure from earlier decisions’ is an assessment of the way in which the Court dealt with France’s arguments in relation to gender equality and public safety, in addition to the introduction of the new concept of ‘living together’. The outcome itself, is not a significant departure from the Court’s previous jurisprudence. While the ECtHR is not bound by precedent, it does tend to ensure consistency and follow a similar line of reasoning in analogous judgments (Dahlab, Sahin, Dogru, Aktas for example). I don’t think the argument that the ECHR is a ‘living instrument’ explains the change in tack regarding gender equality or public safety. The primary difference between SAS and earlier decisions seems to be that the Court required evidence of the State’s assertions that the ban was necessary.

‘Living together’ is a concept that had not previously be raised before nor recognised by the Court. The recognition of the concept could be attributed to the ECHR being a ‘living instrument’. However, as noted by the oft cited dissenting judges in Feldbrugge v Netherlands, ‘[a]n evolutive interpretation allows variable and changing concepts already contained in the Convention to be construed in the light of modern-day conditions … but it does not allow entirely new concepts or spheres of application to be introduced into the Convention’ (dissenting opinion para 24). Additionally, in Winterwerp v Netherlands, the Court warned that restrictions on Convention rights should not be interpreted in such a way as to impair ‘the very essence of the right’ (para 60). I would argue that by accepting the French arguments in relation to ‘living together’ the ECtHR has permitted a new ‘vague’ concept to be added to the permissible grounds of restriction in article 9(2) ECHR. By allowing the States a wide discretion to interfere with matters of conscience, this concept risks undermining the ‘essence of the right’. Even when the State has a margin of appreciation, priority should still be afforded to rights rather than ill-defined concepts. As the wording of article 9 indicates, there is a right to freedom of religion or belief not a right to freedom from religion or belief.

Kind regards

Miroslav Baros says

July 3, 2014

Many thanks Stephanie
"Assessing the impact of the ECtHR on the development of the law by analysing the social and political conditions for new concepts or analysing the concepts themselves" what a lovely essay question for my students for the next academic year! I am asking for their verdict on this.
I am starting to discern two distinct yet, in terms of substance and outcome closely related issues: first, the place of international courts' judicial activism in domestic policy making and second, jurisprudential and technical development of the law. In other words, the nature and substance of powers the states parties want to give to the Court (in this instance to the ECtHR) and the ways in which the Court develops the law. I agree with you that creation of new concepts and subsequent rights or limitation of them is politically a thorny issue for many states. But this is inevitable outcome of states giving consent to this Court to do exactly that. The second issue is a bit more technical so to speak because it relates to strategies and mechanisms that the Court pursues in the development of the law (this issue refers to “living instrument”). But doesn't our slight but healthy disagreement brilliantly demonstrate the value and wisdom of the ECtHR's judgment in Handyside v UK (1976) 1 EHRR 737, in situations where public opinion may differ so much that particular weight should be given to public authorities' determination on the necessity of a restriction? This (margin of appreciation) deals with the former point while the "living instrument" point, in the instant case the concept of “living together” deals with the latter - strategies adopted by the court.
I am sure you would agree that it is legitimate in a democratic society to have debate about how best to protect gender equality, in the present analysis by banning or by allowing wearing veil?
Best wishes

Stephanie Berry says

July 3, 2014

Dear Miroslav,

Many thanks. Just a quick reply, I agree that the margin of appreciation is a useful tool. However, I am concerned that it prevents the Court from exercising its supervisor duty in some instances when there is a clear need to do so (such as in the instance of a new and vague concept e.g. ‘living together’). Specifically, in this case, the Court was concerned that intolerance had marred the political debate but yet did not fully consider the legitimacy of the State’s assertion that the restriction was necessary for ‘living together’ because of the margin of appreciation. I have my doubts that public authorities can be trusted to protect the rights of (unpopular) minorities – and this of course, as the dissenting judges note, is the role of the Court: ‘it still remains the task of the Court to protect small minorities against disproportionate interferences’.

As for your point about gender equality – I am not so sure about this. There is a presumption in relation to both the burqa and the hijab that they infringe gender equality. In the event that a woman is forced to wear either item this is obviously problematic but I think that a public debate which questions the agency of Muslim women to make a decision to wear either garment is equally unhelpful. It is people that infringe the rights of women not items of clothing. I also note that similar debates do not surround the agency of Sikh men to choose to wear the turban.

Kind regards

Daniel Godfrey says

July 14, 2014

Excellent piece. There is a sense of 'One step forward, two steps back' with this judgment, and it'll be interesting to see whether the court's reading of a 'living together' provision into 'the protection of the rights and freedoms of others' legitimate aim will become a standard state defence to claims of interference of Article 9. It certainly gives quite a wide scope for state justifications.

One thing that I note wasn't discussed much in the judgment was the incongruity between the idea that the law wasn't specifically targeting religious manifestations, in spite of the discussions that accompanied the bill, and yet the punishment for contravening the ban included the possibility of having to take a citizenship course. It's surprising that the court didn't have more to say on this particular requirement.

Stephanie Berry says

July 15, 2014

Dear Daniel,

Thank you for your comment – I completely agree. The same argument can be made in relation to the gender equality justification for the law (even though it failed). The ECtHR found the neutral framing of the law to be significant (para 151), somewhat missing its discriminatory intention. How can this particular law be neutral and pursue gender equality?

Kind regards,