European Court Upholds Discriminatory Ban
(Paris) – The European Court of Human Rights’ ruling approving France’s blanket ban on full-face veils undermines Muslim women’s rights, Human Rights Watch said today. The ban interferes with women’s rights to express their religion and beliefs freely and to personal autonomy.
“It’s disappointing that the European Court has given its seal of approval to France’s blanket ban on full-face veils in public,” said Izza Leghtas, Western Europe researcher at Human Rights Watch. “Bans like these undermine the rights of women who choose to wear the veil and do little to protect anyone compelled to do so, just as laws in other countries forcing women to dress in a particular way undermine their rights.”
Since France introduced the ban in 2010, Human Rights Watch and others have contended that it breaches the rights to freedom of religion and expression of those who choose to wear the niqab or burqa and is discriminatory. Similar bans on full-face veils are in force in Belgium and in several towns in Catalonia, Spain.
Bans of this nature – whether formulated in neutral terms or explicitly targeting the Muslim veil – have a disproportionate impact on Muslim women, and thereby violate the right to not be discriminated against on the basis of religion and gender, Human Rights Watch said.
The European Court has previously upheld restrictions on religious dress affecting the wearing of the headscarf in educational institutions in Turkey and Switzerland. With this Grand Chamber ruling on the case of S.A.S v France, the court took a position for the first time on blanket bans on full-face veils in public. While the court rejected the French government’s arguments that the ban was necessary to protect security and equality between men and women, it ruled that the ban was justified for the ill-defined aim of “living together,” accepting the French government’s case that a full-face veil prevents interaction between individuals.
A minority of judges, in a separate opinion, rejected the argument that the blanket ban pursued a legitimate aim and said that, in any event, the ban was far-reaching and not necessary in a democratic society. They said the decision “sacrifices concrete individual rights guaranteed by the Convention to abstract principles,” referring to the European Convention on Human Rights (ECHR).
The case was brought by “S.A.S,” a Muslim French citizen, who sometimes wears a “niqab” – a veil covering the face except for the eyes. She contended that France’s ban on full-face veils breached her rights to freedom of religion, expression, and private life. She also contended that the ban was discriminatory on the basis of gender, religion, and ethnic origin.
France introduced the ban amid a heated public debate about secularism, women’s rights, and security, through a law adopted in October 2010. The law made it a criminal offense to wear clothing intended to cover the face in public, punishable by a fine of up to 150€ (US$210) and/or a compulsory “citizenship course.” The law also rightly criminalizes coercing someone else into covering their face, punishable by up to a year in prison and a 30,000€ ($40,950) fine, or two years in prison and a 60,000€ fine if the person coerced is a minor. The law entered into force in April 2011.
According to the French Observatory on Secularism (Observatoire de la laïcité) – a consultative body tasked with advising the government on secularism – between April 2011, when the ban became effective, and February 2014, law enforcement officials fined 594 women for wearing full-face veils. Many of the women affected were fined more than once.
An argument often raised in favor of the ban, and which the court rejected, is that it emancipates women who are forced to cover their faces. But for women who are indeed coerced into wearing a full-face veil, the ban can have the effect of confining them to their homes and isolating them further from society by preventing them from using public transportation, entering public buildings, or even walking on the street.
As for the many women – including “S.A.S.” – who choose to wear the full-face veil as an expression of their religious beliefs, they should be able to do so without breaking the law, Human Rights Watch said.
Indeed, France has a duty, under the European Convention on Human Rights and the International Covenant on Civil and Political Rights (ICCPR), to respect and protect freedom of religion, expression, and personal autonomy of all those on its territory. While the convention and the covenant allow certain restrictions of those rights, they must be necessary for a legitimate purpose such as preserving public safety or public order, and they must be proportionate. Human Rights Watch maintains that a blanket ban such as the one in force in France is disproportionate.
A core part of the right to freedom of expression is that it includes the right to express opinions that offend, shock, or disturb. As two dissenting judges said, “There is no right not to be shocked or provoked by different models of cultural or religious identity, even those that are very distant from the traditional French and European life-style.”
Though the ban on wearing, in public, “clothing intended to conceal the face” may appear neutral, in reality it primarily affects Muslim women wearing the niqab or the burqa and is, as such, discriminatory. It is disturbing that the court acknowledged the specific negative effects of the ban on Muslim women, yet considered that it was justified, Human Rights Watch said.
International human rights experts have also condemned blanket bans on the niqab and burqa. Thomas Hammarberg, the former Council of Europe commissioner for human rights, called general bans on full-face veils “an ill-advised invasion of individual privacy.” The Parliamentary Assembly of the Council of Europe has also opposed such bans, warning against the adverse effects of women being confined to their homes and excluded from educational institutions and public places.
Human Rights Watch has also opposed laws and policies in other countries, such as Saudi Arabia, Iran, and Afghanistan under the rule of the Taliban, for forcing women to cover their hair or their face because they deny them their right to personal autonomy and their rights to freedom of expression, belief, and religion.
France should end its criminalization of women who choose to cover their faces, and protect those who are coerced to do so without excluding them from public space, Human Rights Watch said.
“Women in France and elsewhere should be free to dress as they please,” Leghtas said. “This includes deciding whether to wear a full-face veil or not, whatever others may think.”