S.A.S v France: Towards a General Prohibition of the Full-Face Veil in Europe?

David Fernandez-Rojo |

In this post I would like to analyze the first ruling at the European Court of Human Rights (ECtHR), “S.A.S v. France”, concerning the full-face veil. In this case a Muslim woman, who voluntarily wore the niqab, alleged that the burqa-ban passed in France breached her right to mNiqabanifest her Islamic faith according to article 9 European Convention of Human Rights (ECHR). The ECtHR introduced the principle “living together” as a legitimate aim to ban the burqa and niqab in France, on the basis that wearing the full-face veil hinders communication among individuals. Specifically, the Court pointed out that the “principle of interaction between individuals […] is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society”.[1]

In my opinion this ruling, which dangerously opens the door to prohibit the full-face veil in other countries, presents four inconsistencies:

  1. The ECtHR referred to the exceptions listed in article 9(2) ECHR as “exhaustive and […] restrictive”.[2] The Court did not follow its own recommendation, for it introduced “living together” as a legitimate aim to limit one’s freedom of religion. Precisely, in the dissenting opinion, Judges Nussberger and Jäderblom considered the concept of “living together” to be “far fetched and vague”.[3]
  2. The ECtHR held that the criminal provisions for those who violated the French burqa-ban law of 11 October 2010 “were among the lightest”.[4] However, Judges Nussberger and Jäderblom disagreed, pointing out that “where the wearing of the full-face veil is a recurrent practice, the multiple effect of successive penalties has to be taken into account”.[5] In other words, every criminal provision must be interpreted restrictively and follow the principle of proportionality. The ECtHR did not adequately explore alternative measures such as raising awareness and education for Muslim women.
  3. The ECtHR stated in “S.A.S. v. France” that “pluralism, tolerance, and broadmindedness are hallmarks of a democratic society”.[6] Nonetheless, the Court recognized “living together” as a legitimate aim for a general prohibition, which in fact justifies a prohibitive law that hinders pluralism and diminishes the freedom of choice of women who voluntarily decide to wear the burqa or niqab. Paradoxically, in a previous case concerning the Islamic Veil (“Leyla Sahin v. Turkey”), the ECtHR established that “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 people from minorities and avoids any abuse of a dominant position”.[7] While in “S.A.S v. France” the ECtHR sided with the majority, in the previous case “Leyla Sahin v. Turkey” the Court aimed to protect the interests of the minority.
  4. The ECtHR implemented a burqa-ban on the basis that it hinders communication in society. However, as Judges Nussberger and Jäderblom expressed in their dissenting opinion of “S.A.S. v. France”: “while communication is admittedly essential for life in society, the right to respect for private life also comprises the right not to communicate […] – the right to be an outsider”.[8] In this regard, I believe that the principle of “living together” is difficult to justify, for if it is assumed that everyone has the right to see the face of another, that would imply denying the right of each person to show it. In my view, it has not been sufficiently demonstrated that the full-face veil provoked a disturbance of public tranquility and peace.

[1] S.A.S. v. France, §153.

[2] While article 9(2) ECHR does not establish “living together” as a legitimate aim to limit the right to religious freedom, the Court linked it to the “protection of the rights and freedoms of others”, a legitimate aim actually found in article 9(2) ECHR. See S.A.S. v. France, §113.

[3] S.A.S. v. France, dissenting opinion, §5.

[4] S.A.S. v. France, §151.

[5] S.A.S. v. France, dissenting opinion, §22.

[6] S.A.S. v. France, §128.

[7] Leyla Sahin v. Turkey, §108.

[8] S.A.S. v. France, dissenting opinion, §8.