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A Comment on the European Court of Human Right’s Judgment in S.A.S. v. France

Antonios KouroutakisOxford University

[Editor’s Note: This is the second of two scholarly perspectives published on I-CONnect this week this week on S.A.S. v. France. The first was published here on Wednesday, July 9.]

How to balance individual rights with the state intervention to accommodate the interests of the society as whole is an inherently difficult question. This issue increasingly dominated the French agenda as the relatively recent phenomenon of wearing the scarf and hijab in France was seen as incompatible with the secular character of the French Republic.

In 2004 French Republic passed a law banning all conspicuous religious symbols in French public primary and secondary schools[1] which in practice targeted Muslims. In 2010 another law was passed banning the wearing in public of clothing designed to conceal one’s face which mainly affected Muslim women who wish to wear the full-face veil.[2]

The issues are of particular importance in the context of the state interest to reconcile expressions of personal faith with secular law and constitutional norms. The compatibility of the Law prohibiting the wearing of burqa and niqab in public places with the freedom of religion[3] and the right to privacy[4] was challenged before the European Court of Human Rights (the Court). A priori, any limitation to the right to privacy and the freedom to manifest one’s religion shall be based on a variety of grounds prescribed in the text of the Convention.[5]

On July 1st 2014, the Court with a groundbreaking decision set a new balance between the individual right (right to privacy and freedom of religion) and the rights and freedoms of others.

In particular the Court held that the French law is regarded as proportionate to the state interest to preserve the conditions of living together as an element of the protection of the rights and freedoms of others. Consequently, the ban imposed by the Law of 11 October 2010 was within the breadth of the margin of appreciation afforded to the respondent State in the present case.[6]

Having said that, the Court rejected a series of procedural objections raised by the French Government. Namely the French Government objected the applicant’s status as a “victim”, also it claimed that the legal action was an improper exercise of the right of individual application, and finally, it raised the issue that the applicant had failed to exhaust domestic remedies.

On the other hand, the Court rejected the legal grounds raised by the applicant as the complaints were manifestly ill-founded.[7] In particular, the court rejected the complaint that if she was to comply with the law, this would expose herself to a risk not only of sanctions, but also of harassment and discrimination, which would constitute degrading treatment.[8] Likewise, the court did not find any violation of her right to freedom of association and discrimination in the exercise of that right,[9] nor any violation of her right to respect for her private life, her right to manifest her religion or beliefs and her right to freedom of expression, together with discrimination in the exercise of these rights.[10]

Interestingly, the French Government raised two defenses enumerated in the second paragraph of Article 8 and 9 of the Convention: the “public safety”and the “protection of the right of others”. Regarding the former, the Court held that there is no general threat to public safety to reason the state interest to identify individuals in order to prevent danger and combat identity fraud.[11]

Contrariwise, the second defense concerning the “protection of the rights and freedoms of others”convinced the Court. Verbatim, the Court accepted that “a State may find it essential to give particular weight in this connection to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places”,[12] and furthermore that “the impugned ban can be regarded as justified in its principle solely in so far as it seeks to guarantee the conditions of ‘living together’”.[13]

Finally, the Court valued a number of the indicators so as to justify the proportionality of the specific limitation. In particular, it focused on the small number of women concerned, about 1,900 women,[14] and although, it admitted that the scope of the ban is too broad (all public places),[15] it placed greater value on the fact that“the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face”.[16] Thus, by fifteen votes to two, the Court found that there has been no violation of Articles 8 and 9 of the Convention.

Everything considered, the Majority for the court departed from the precedent concerning the permitted limitations to the right to manifest one’s religion as it was set in Ahmet Arslan and Others v. Turkey.[17] The Court in 2010 held that the criminal conviction of members of a religious group for their manner of dressing in public is unjustified in violation of Article 9 of the Convention. Virtually, what distinguished the aforementioned case from the French case, is the wording of the explanatory memorandum. The text that accompanies the Bill incorporates the spirit of the specific limitation and shows the motives of the drafters. Nonetheless, the dissenting opinion did not accept the legal validity of the explanatory memorandum and described it as “abstract principle”that overflow concrete individual rights.[18]

Technically, the conundrum before the Justices was how to reconcile an individual right with the interest and the rights of others. The trend in such cases[19] was that the protection of the individual right prevails, while the orthodoxy is that only under specific circumstances such as during emergencies, and environmental law cases the interest of the society as a whole preempts. What remains to be seen is whether this case would have a slippery slope[20] and what would be its extent.

Suggested Citation: Antonios Kouroutakis, A Comment on the European Court of Human Right’s Judgment in S.A.S. v. France, Int’l J. Const. L. Blog, July 11, 2014, available at: http://www.iconnectblog.com/2014/07/a-comment-on-sas-v-france

[1] Law no. 2004-228 of 15 March 2004 concerning, as an application of the principle of the separation of church and state, the wearing of symbols or garb which show religious affiliation in public primary and secondary schools also known as “French headscarf ban”. In 2008 the European Court of Human Rights held that the law had been justified as a matter of principle and had been proportionate to the aim pursued and thus, there had been no violation of Article 9. see Dogru v. France (application no. 27058/05) and Kervanci v. France (no. 31645/04)

[2] Law no. 2010‑1192 of 11 October 2010 “prohibiting the concealment of one’s face in public places”

[3] Convention for the Protection of Human Rights and Fundamental Freedoms, Article 9 (1) “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

[4] Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8 (1) “Everyone has the right to respect for his private and family life, his home and his correspondence.”

[5] Both rights are subjects to a number of caveats listed in the second paragraph of the relevant articles. See Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8(2) and 9 (2)

[6] S.A.S. v. FRANCE (Application no. 43835/11) [157].

[7] Convention for the Protection of Human Rights and Fundamental Freedoms, Article 35 (3). The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of application.

[8] Alleged Violation of Article 3 of the Convention, Taken Separately and Together with Article 14.

[9] Alleged Violation of Article 11 of the Convention, Taken Separately and Together with Article 14.

[10]Alleged Violation of Articles 8, 9 and 10 of the Convention, Taken Separately and Together with Article 14.

[11] S.A.S. v. FRANCE (Application no. 43835/11) [139].

[12] Id. at [141].

[13] Id. at [142].

[14] Id. at [145].

[15] Id. at [151].

[16] Id. at [151].

[17] See Ahmet Arslan and Others v. Turkey, no. 41135/98.

[18] S.A.S. v. FRANCE (Application no. 43835/11) [jointly partly dissenting opinion of Judges Nussberger and Jäderblom).

[19] See for instance in the Jurisprudence of ECJ Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (C-131/12) and of the US Supreme Court United States v. Windsor, 570 U.S. 12 (2013).

[20] Eugene Volokh, The Mechanisms of the Slippery Slope, (2003) 116 Harvard Law Review 1026, 1137.

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Published on July 11, 2014
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