Veil Bans in the European Court of Human Rights

cross-posted from the American Society of International Law’s “ASIL Insight” available at https://www.asil.org/insights/volume/21/issue/15/veil-bans-european-court-human-rights

20171212In recent years a number of European countries have prohibited women from publicly wearing veils that cover their faces.[1] The European Court of Human Rights (the ECtHR or the Court) recently found that Belgium’s veil ban did not violate the European Convention on Human Rights (the Convention).[2]

Restrictions on Muslim women’s clothing first appeared before the Court in a case from Turkey in 2004 involving bans on headscarves in educational institutions.[3] In 2014, the Court found that France’s veil ban did not violate the Convention.[4] In the most recent cases concerning Belgium, the Court also left the Turkish veil ban undisturbed.[5] In this Insight, we explain the relevant rights in the Convention that were in question in the veil bans. Thereafter, we discuss how each of the Court’s decisions have appeared to rely on its prior veil ban decisions and have reached the same legal conclusion to uphold the veil ban, despite contextual differences among the three countries that could have affected the Court’s application of the law to the facts.


Relevant Rights Under the Convention

Prohibitions on religious garb implicate Article 9 of the Convention, which states that everyone has the freedom “to manifest his religion or beliefs.”[6] Article 8 states that everyone “has the right to respect for his private and family life.”[7] But states can limit those rights under certain circumstances. Specifically, the exercise of one’s religion can be limited by the state in the interest of public safety; for the protection of public order, health, or morals; or for the protection of the rights and freedoms of others.[8] The right to privacy can be limited for the same reasons, or additionally for “the economic well-being of the country.”[9]

The Turkish Headscarf Ban Case (2004)

In Sahin v. Turkey, the ECtHR found that Turkey’s ban on headscarves in universities did not violate Article 9 of the Convention because the ban was necessary to protect the “rights and freedoms of others” and to protect the “public order.”[10] The Court in Sahin noted that “extremist political movements in Turkey . . . seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts,” and maintained that states “take a stance against such political movements.”[11] Without clearly articulating its rationale, the Court also took note of Turkey’s constitutional protection of the “rights of women” and gender equality to undergird its decision.[12] The dissent underscored that by focusing on the rights of women, the majority suggests that “the ban on wearing the headscarf is . . . seen as promoting equality between men and women.”[13]

The French Full-Face Veil Ban Case (2014)

In S.A.S. v. France, the Court evaluated and upheld France’s ban on the full-face veil. The Court found that, though wearing the veil was a valid exercise of religion, it prevented people in France from “living together.”[14] The Court agreed with France that when a woman covers her entire face except for her eyes she is “breaching the right of others to live in a space of socialization which makes living together easier.”[15] In other words, a woman who covers her face creates barriers for others to interact with her.[16]

The goal of “living together” is not articulated as a permissible reason to limit the rights guaranteed in Articles 8 or 9. However, the Court found that “living together” was an element of a valid ground to limit rights—for the “protection of the rights and freedoms of others.”[17] The dissent disagreed with this interpretation and stated that the “general concept of ‘living together’ does not fall directly under any of the rights and [guarantees] . . . within the Convention.”[18]

The Court also gave wide latitude and deference to France by using a doctrine called “margin of appreciation,”[19] which gives countries great discretion in adopting laws in the “grey area” where there is room for interpretation in fulfilling their obligations under the Convention.[20]

In S.A.S., the Court appeared to rely on the reasoning articulated in the Turkish veil ban case (Sahin), citing that case seventeen times while outlining the principles that support its legal conclusion in favor of France, even though the political, economic, and other contexts in Turkey are different from those in France.[21] For example, citing Sahin, the Court noted that “[i]n democratic societies, in which several religions coexist within one and the same population, it may be necessary to place limitations on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.”[22] It thereby implicitly equated religious diversity in France with that in Turkey, notwithstanding the fact that Islam is the majority religion in Turkey while it is a minority religion in France. The Court cited Sahin to illustrate the types of restrictions on religious garb that do not violate Article 9 of the Convention (in particular, the wearing of religious symbols in state schools by pupils and students).[23] Yet, the Court failed to recognize that the protection of the right to resist extreme ideology, the key rationale in Sahin, is specific to Turkey and is not relevant to France, where there is no threat of extreme ideology becoming predominant.

Importantly, the Court failed to distinguish the political and social context of Turkey from that of France.[24] According to the Sahin court, veiling was being encouraged by a conservative Islamic movement in Turkey. In that context, it is possible that a government restriction on headscarves was justifiable on gender equality grounds. On the other hand, in French society veiling is not part of the mainstream culture and women may wear the veil for different reasons than in Turkey. For example, in France, the veil can be an assertion of identity in a culture where Muslims are a religious minority.[25] Even though the S.A.S. court purports to reject France’s claim that the ban promoted gender equality, by relying on Sahin, it suggests that it believes that prohibitions on veiling promote women’s equality. [26]

The Belgian Full-Face Veil Ban Cases (2017)

In twin cases from Belgium, Dakir v. Belgium and Belcacemi and Oussar v. Belgium, the ECtHR also ruled that Belgium’s laws banning full-face veils did not violate Articles 8 or 9 of the Convention.[27] Both decisions follow the French veil ban case (S.A.S.). Indeed, the Court referenced the French case fifteen times in its decision in Dakir and nineteen times in its decision in Belcacemi. In the Belgian cases, the ECHR found, similar to its decision in S.A.S., that the full-face veil ban contravened Articles 8 and 9, but could be allowed in order to enhance people’s ability to “live together” pursuant to the “protection of rights of others.” It further found that Belgium had a wide margin of discretion in deciding whether it could restrict this way of manifesting religion.[28] The Court did not take account of differences in proportionality of punishment under the Belgian veil ban and the French veil ban where the Belgian law allowed for imprisonment, whereas the French law was limited to a fine. The Court also failed to use the opportunity to clarify or otherwise elaborate upon the vague standard of “living together” that it articulated in S.A.S.

Precedent in the ECtHR

Unlike most domestic courts, the ECtHR is not bound by its prior decisions.[29] This is because it adjudicates cases arising from forty-seven countries, which have disparate political, historical, and economic contexts. In this light, it is interesting that the ECHR upheld state restrictions on Muslim women’s dress in every country from which it considered them. The bans were allowed to remain in a country where Muslims are the majority religion and in countries where they are a vulnerable minority. Notably, in another case arising from Turkey, the Court found that restrictions on Muslim’s men’s religious attire violated the Convention.[30] The ECHR may be giving less weight to Muslim women’s freedom of religion because of an assumption that religious attire worn by Muslim women is oppressive to them, whereas Muslim men’s attire is not.

The veil ban cases are not the only cases where the Court has followed its prior decisions. Indeed, an empirical study of ECtHR decisions shows that the Court uses its prior decisions much like common law courts do.[31] However, in some cases, a just result calls for deviating from prior holdings. The Court should be open to the possibility that prohibitions on veiling may promote equality in some contexts, but not in others.

About the Authors: Sital Kalantry is a clinical professor of law at Cornell Law School and author of Women’s Human Rights and Migration: Sex-Selective Abortion Law in the United States and India (2017). Maithili Pradhan is an independent consultant with expertise in international human rights law, diversity and inclusion, and corporate social responsibility.

 

[1] The Netherlands, Germany, Austria, France, Belgium, Italy, Spain, the United Kingdom, Turkey, Denmark, Switzerland and Russia have all taken action toward restricting full-face veils in public. The Islamic Veil Across Europe, BBC (Jan. 31, 2017), http://www.bbc.com/news/world-europe-13038095.

[2] Dakir v. Belgium, App. No. 4619/12 (Eur. Ct. H.R. July 11, 2017); Belcacemi and Oussar v. Belgium, App. No. 37798/13 (Eur. Ct. H.R. July 11, 2017).

[3] Sahin v. Turkey, App. No. 44774/98 (Eur. Ct. H.R. June, 29 2004), aff’d, App. No. 44774/98 (Eur. Ct. H.R. Nov, 10, 2005).

[4] SAS v. France, 2014-III Eur. Ct. H.R. 341.

[5] Dakir, App. No. 4619/12, Eur. Ct. H.R.; Belcacemi, App. No. 37798/13, Eur. Ct. H.R.

[6] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms art. 9(1), Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter Convention].

[7] Id. art. 8(1).

[8] Id. art. 9(2).

[9] Id. art. 8(2).

[10] Sahin, App. No. 44774/98, Eur. Ct. H.R. ¶ 99.

[11] Id. ¶ 115.

[12] See id.

[13] Id. ¶ 11 (Tulkens, J., dissenting).

[14] SAS, 2014-III Eur. Ct. H.R. 341 ¶ 142. See also id., ¶¶ 122, 125–27.

[15] Id. ¶ 122.

[16] See id. ¶¶ 140–42.

[17] Id. ¶ 157.

[18] Id. ¶ 5 (Nußberger & Jäderblom, JJ., dissenting).

[19] See id. ¶¶ 155, 161.

[20] See id. ¶ 129. See also The Margin of Appreciation, Council of Europe, https://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp (last visited Nov. 8, 2017).

[21] See S.A.S., 2014-III Eur. Ct. H.R. ¶¶ 114, 119, 124–33.

[22] Id. ¶ 126 (citing Sahin, App. No. 44774/98, Eur. Ct. H.R. ¶ 106).

[23] See id. ¶ 133 (citing Sahin, App. No. 44774/98, Eur. Ct. H.R. ¶¶ 109–10).

[24] See id. ¶¶ 114, 119, 124–131, 133.

[25] See Karima Bennoune, Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women’s Equality Under International Law, 45 Colum. J. Transnat’l L. 367, 389–90, 395 (2007).

[26] Id.

[27] See Dakir, App. No. 4619/12, Eur. Ct. H.R.; Belcacemi, App. No. 37798/13, Eur. Ct. H.R.

[28] See Belcacemi, App. No. 37798/13, Eur. Ct. H.R. ¶¶ 49, 51, 53; Dakir, App. No. 4619/12, Eur. Ct. H.R. ¶¶ 51, 54, 56.

[29] But see Yonatan Lupu & Erik Voeten, Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights, 42 Brit. J. Pol. Sci. 413, 413 (2012).

[30] See Arslan and Others v. Turkey, App. No. 41135/98 (Eur. Ct. H.R. Feb. 23, 2010).

[31] See id. at 413–14.

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