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European Court of Human Rights; France: Recent Court Decisions on Islamic Veil Bans

(July 11, 2014) The European Court of Human Rights has recently ruled that the French ban on veiling one’s face in public does not breach the European Convention on Human Rights. (S.A.S. v. France, Eur. Ct. H.R. (July 1, 2014), Application No. 43835/11.) This ruling ends a case regarding a 2010 French law banning concealment of one’s face in public (Loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public [Law No. 2010-1192 of October 11, 2010, Banning Concealment of the Face in Public Places], LEGIFRANCE; see also Nicolas Boring, France: 2010 Law Banning Full Islamic Veil Challenged in Court, GLOBAL LEGAL MONITOR (Jan. 6, 2014) & Nicole Atwill, France: Law Prohibiting the Wearing of Clothing Concealing One’s Face in Public Spaces Found Constitutional, GLOBAL LEGAL MONITOR (Oct. 18, 2010).)

This case was brought by a French Muslim woman who wears a burqa (a full-body covering including a mesh screen over the face) or a niqab (a full-face veil leaving an opening only for the eyes). (S.A.S. v. France, supra; see also Press Release, European Court of Human Rights, Registrar of the Court, French Ban on the Wearing in Public of Clothing Designed to Conceal One’s Face Does Not Breach the Convention (July 1, 2014).) She occasionally wears these types coverings, in public or in private, and entirely voluntarily. (Id.) She lodged a complaint with the European Court of Human Rights on April 11, 2011, the day the above-mentioned French law banning concealment of one’s face in public entered into force. Her complaint alleged that the new French law violated the European Convention on Human Rights, particularly articles 8 (protecting the right to respect for private and family life), 9 (protecting freedom of thought, conscience and religion), 10 (protecting freedom of expression), and 14 (prohibiting discrimination). (Id.; European Convention on Human Rights (Nov. 4, 1950, as amended as of June 1, 2010), Council of Europe website.)

The Court accepted France’s argument that the law was enacted to promote public safety, but expressed skepticism as to whether the ban on full-face veils was a necessary and proportionate measure absent a general threat to public safety (S.A.S. v. France, supra.) The Court was more receptive to the argument that the ban was also to protect the “rights and freedom of others,” especially the “respect for the minimum requirements for life in society.” (Id.) Indeed, the Court found that since “the face plays an important role in social interaction … the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.” (Id.) Nonetheless, the Court noted that the “flexibility” of the notion of “living together” could cause a risk of abuse, and it called for “a careful examination of the necessity of the impugned limitation.” (Id.)

This decision was rendered just a few days after the Cour de cassation, France’s highest court for civil matters, rendered its decision in another case involving an Islamic veil. An employee of the Association Baby-Loup, a non-profit child-care center, was fired after she started to come to work with a hijab (a veil covering the head and chest, but not the face), in violation of the non-profit’s internal rules and explicitly secular philosophy. The Cour de cassation confirmed the lower court of appeals’ decision in favor of the non-profit. (Cour de cassation, Assemblée plénière (Plenary Chamber), Arrêt No. 612 du 25 juin 2014 [Decision No. 612 of June 25, 2014], 13-28.369, Cour de cassation website.) This case, which has proven very controversial in France, may not be entirely over, however, as the former employee is reportedly considering appealing to the European Court of Human Rights. (L’affaire Baby Loup en quatre questions [The Baby Loup Case in Four Questions], LE MONDE (June 26, 2014).)