Public Space Face Veil I
S.A.S. v. France concerned the complaint of a French national, who is a practising Muslim, that she is no longer allowed to wear the full-face veil in public following the entry into force, on 11 April 2011, of a law prohibiting the concealment of one’s face in public places. The applicant is a devout Muslim and in her submissions she said that she wore the burqa and niqab in accordance with her religious faith, culture and personal convictions. She also emphasised that neither her husband nor any other member of her family put pressure on her to dress in this manner.
The Court held that there had been no violation of Article 8 (right to respect for private and family life), and no violation of Article 9 (right to respect for freedom of thought, conscience and religion) of the Convention. It emphasised in particular that respect for the conditions of “living together” was a legitimate aim for the measure at issue and that, particularly as the State had a wide margin of appreciation”) as regards this general policy question on which there were significant differences of opinion, the ban imposed by the Law of 11 October 2010 did not breach the Convention.
The Court also held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention combined with Articles 8 or 9: the ban imposed by the Law of 11 October 2010 admittedly had specific negative effects on the situation of Muslim women who, for religious reasons, wished to wear the full-face veil in public, however, that measure had an objective and reasonable justification.
In Ahmet Arslan v. Turkey, the applicants had been convicted of wearing proscribed religious dress in public. In contrast to the above case, this arose in a private capacity not in a public building or place without issues of pressure or proselytism of others. There was found to be a breach of the Convention.
Public Space Face Veil I
Belcacemi and Oussar v. Belgium concerned the ban on the wearing in public of clothing that partly or totally covers the face under the Belgian law of 1 June 2011. The Court held that there had been no violation of Articles 8 (right to respect for private and family life) and 9 (freedom of thought, conscience and religion) of the Convention and no violation of Article 14 (prohibition of discrimination) of the Convention taken together with Articles 8 and 9. The Court found in particular that the restriction sought to guarantee the conditions of “living together” and the protection of the rights and freedoms of others and that it was necessary in a democratic society.
Firstly, as in the case of S.A.S v. France (see above), the Court found that the concern to ensure respect for the minimum guarantees of life in society could be regarded as an element of the protection of the rights and freedoms of others and that the ban was justifiable in principle, solely to the extent that it sought to guarantee the conditions of “living together”. In that connection, the Court explained that, through their direct and constant contact with the stakeholders in their country, the State authorities were in principle better placed than an international court to assess the local needs and context. The question whether the full-face veil was to be accepted in the Belgian public sphere was thus a choice of society. Secondly, as regards the proportionality of the restriction, the Court noted that the sanction for non-compliance with the ban under Belgian law could range from a fine to a prison sentence.
Dakir v. Belgium concerned a by-law adopted in June 2008 by three Belgian municipalities (Pepinster, Dison and Verviers) concerning a ban on the wearing in public places of clothing that conceals the face, and the subsequent proceedings before the Conseil d’État.
The Court held that there had been no violation of Articles 8 (right to respect for private and family life) and 9 (right to freedom of thought, conscience and religion) of the Convention and no violation of Article 14 (prohibition of discrimination) of the Convention taken together with Articles 8 and 9. The Court found in particular that the ban imposed by the joint by-law of municipalities in the Vesdre police area could be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the protection of the rights and freedom.
In Leyla Şahin v. Turkey, a prohibition on an Islamic headscarf in universities was upheld as compatible with the Convention. The court emphasised that in a state where secularism was important, and there were co-existing religions, there was an interest and states had greater discretion in regulating religious dress and symbols in public institutions.
It said, “the principle of secularism, as elucidated by the Constitutional Court, is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn.
In Dahlab v. Switzerland, a teacher of a 4- 8-year-old converted to Islam and wore an Islamic headscarf in class, although there was no evidence of her having sought to speak about religion to the pupils. A prohibition on Islamic headscarves was consistent with the maintenance of religious neutrality in school. As in the Larisssis case, the hierarchical nature and structure might have a proselytizing effect and children at a young age.
In the Eweida and Others v. United Kingdom cases mentioned above, the applicants had argued that the prohibition by the employer on wearing crucifixes had breached their right to manifest their belief as Christians. The applicant successfully claimed that the policy of British Airways prohibiting the wearing of jewellery on the uniform, including a crucifix, breached the Convention. It has since changed its policy and made similar accommodations for other religions.
Another applicant was a nurse employed by the NHS foundation, which prohibited all jewellery by reason for health reasons. This was held to be legitimate. Hospital authorities were allowed a wide margin of appreciation in respect of the dress code.
Ebrahimian v. France concerned the decision not to renew the contract of employment of a hospital social worker because of her refusal to stop wearing the Muslim veil. The applicant complained that the decision not to renew her contract as a social worker had been in breach of her right to freedom to manifest her religion.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the French authorities had not
exceeded their margin of appreciation in finding that there was no possibility of reconciling the applicant’s religious convictions with the obligation to refrain from manifesting them, and in deciding to give precedence to the requirement of neutrality and impartiality of the State.
Hamidović v. Bosnia and Herzegovina A witness in a criminal trial, the applicant was expelled from the courtroom, convicted of contempt of court and fined for refusing to remove his skullcap. The Court held that there had been a violation of Article 9 (freedom of religion) of the Convention. It found that there had been nothing to indicate that the applicant had been disrespectful during the trial. Punishing him with contempt of court on the sole ground that he had refused to remove his skullcap, a religious symbol, had not therefore been necessary in a democratic society and had breached his fundamental right to manifest his religion.
Lachiri v. Belgium concerned the applicant’s exclusion from a courtroom on account of her refusal to remove her hijab. The Court held that there had been a violation of Article 9 (freedom of religion) of the Convention. It found that the exclusion of the applicant – an ordinary citizen, not representing the State – from the courtroom had amounted to a restriction on the exercise of her right to manifest her religion.
Eweida and Chaplin v. the United Kingdom;The two applicants – a British Airways employee and a geriatrics nurse respectively – are practising Christians. They complained in particular that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work, and alleged that domestic law had failed adequately to protect their right to manifest their religion. The Court held that there had been a violation of Article 9 (freedom of religion) of the Convention in respect of the first applicant, and no violation of Article 9, taken alone or in conjunction with Article 14 (prohibition of discrimination) of the Convention, in respect of the second applicant.
It did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself meant that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.
In Lautsi v. Italy, the applicant’s children attended a public school in which the crucifix was displayed. This was found not to violate the Convention, notwithstanding the principle of secular education. The presence of the crucifix was not associated with the compulsory teaching of the Christian religion.