—Ioanna Tourkochoriti, Fellow, The Walker Institute for Area Studies and The Rule of Law Collaborative, University of South Carolina
[Editor’s Note: This is the first of two scholarly perspectives that I-CONnect will publish this week on S.A.S. v. France. The second will be published on Friday, July 11.]
In S.A.S. v. France, the European Court of Human Rights examined whether the French Law of October 11th 2010 banning the full covering of the face (the law widely known as aiming to ban the wearing of the burka) is compatible with the European Convention of Human Rights (ECHR).
Although the Court recognizes many essential aspects of the right to freedom of religion in European Societies (which are becoming all the more multicultural), the ruling is disappointing as it concedes too much to the “margin of appreciation” of the state to define “the minimum requirements of the life in society” in a way that overlooks the need to protect individual liberties and the principle of equal respect, which must be afforded to every participant in such a society.
The decision makes many important positive steps towards protecting religious freedom. First, the Court admits that applicants claiming that an act falls within their freedom to manifest their religion or beliefs are not required to establish that they acted in fulfillment of a duty mandated by the religion in question.
Second, for the court an individual may argue that a law breaches his or her rights in the absence of a specific instance of enforcement, and thus claim to be a “victim” within the meaning of article 34 of the European Convention of Human Rights if she is required either to modify her conduct or risk being prosecuted, or if he or she is a member of a category of persons who risk being directly affected by the legislation.
Third, the court dismissed the objection of the French Government that in the absence of any domestic proceedings the application should be declared inadmissible for failure to exhaust domestic remedies noting that if the applicant had been convicted pursuant to the Law and had subsequently appealed on points of law on the grounds of a violation of Article 9 her appeal would have been dismissed by the Court of Cassation (Supreme Court of the ordinary jurisdiction) as it results from a previous judgment of the same Court.
Fourth, the Court dismissed the French Government’s argument that the applicant had “abused” her right of individual application as she had not been the subject of domestic proceedings. For the court such abuse is established when there is manifest inconsistency with the purpose of the right of application as well as hindrance to the proper functioning of the Court, or to the smooth conduct of the proceedings before it, conditions not met in this case.
Furthermore, the Court appears not to be convinced by the Government’s submission that the ban is justified as dictated by the concern to enforce respect for equality between men and women. For the Court a State cannot invoke gender equality to ban a practice that is defended by women in the context of the exercise of the rights protected by articles 8 (right to privacy) and 9 (right to freedom of religion) of the ECHR, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms. Wearing clothing that is perceived as strange or even shocking to the majority of the population in France as infringing the principle of gender equality as generally accepted in France is the “expression of a cultural identity which contributes to the pluralism that is inherent in democracy”. It also notes that the respect for human dignity cannot justify a blanket ban on the wearing of the full-face veil in public places. The Court is very sensitive to the fact that “pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society”.
The problems begin when the Court accepts 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”. It finds that the “respect for the minimum requirements of life in society” referred to by the French Government can be linked to the legitimate aim of protecting the rights of others, one of the permissible limitations to the right of freedom of religion articulated in the clause of article 9 § 2 of the ECHR. It accepts thus that wearing a veil concealing the face raises a barrier against others which “is perceived by the respondent space as breaching the right of others to live in a space of socialization which makes living together easier”. This reasoning overlooks the fact that an important idea of modernity, the idea of the social contract, means that individuals have the possibility to define the degree of their membership in society provided that they do not harm others. It is difficult to see why the negation of sociability in this context by covering one’s face causes harm to others. Therefore the Court seems to neglect the fact that individuals have the right to choose the degree of their allegiance to society provided that this does not harm others. Rousseau has stressed that social interaction is constitutive of our humanity: it is society through language that makes a human being a human being as it allows abstract thought to emerge and thus morality. However, a liberal democratic regime should allow the possibility to its members to withdraw and to appreciate critically the membership in their community. A liberal regime should accept a distinction between self-regarding and other-regarding acts and regulate the later while abstaining from the former. This distinction, although artificial, is extremely important for the protection of individual liberties. Forcing human beings to be sociable by forcing them to uncover their faces in this context is equivalent to accepting an omnipotent state, which is allowed to define a person as far as all aspects of her existence are concerned. It is equivalent to accepting a very wide interpretation of the harm principle that is threatening to the principle of self-determination. And it is contrary to the idea of equal respect that must be recognized to everyone on the basis of human dignity.
As the dissenting judges Nussberger and Jäderblom note, concrete individual rights protected by the ECHR are being “sacrificed” in the majority opinion to “abstract principles”. For the two judges the concept of “living together” does not fall under any of the rights and freedoms guaranteed by the convention. They also note that the symbolic meaning of the full-face veil, that it expresses “dehumanizing violence”, has been called into question by the applicant who claims to wear the veil only on the basis of her “spiritual feelings”. “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”. While communication is essential for life in society, the right to privacy comprises “the right to be an outsider”. And in any case “people can socialize without necessarily looking into each other’s eyes”.
Although the court notes that pluralism and democracy must be based on a dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals, it ends up by deferring to the margin of appreciation of France to decide whether the burka ban is a measure proportionate to this aim. The ban instead of promoting dialogue on the reasons of covering one’s face is a measure that negates an unpleasant reality. As the dissenting judges also note, instead of promoting tolerance and pluralism, the ban attempts to do away with what is seen as a cause of tension.
For the Court it was significant 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. Although the law is enacted as a rule of general applicability, in the context of this case it is clear that it aims to attack a specific religion. The rule is neutral prima facie only and its purpose is to suppress religious conduct. This is a very important element of the file that the Court overlooks. In this respect the criteria posed by the U.S. Supreme Court can be very instructive. In Abington School Disctrict v. Schempp the Court ruled that whether a law constitutes a violation of religious freedom is largely a function of whether the legislature intended to aid or hinder religion. If such a motivation exists then a court should examine whether the choice violating a liberty might be justified “in terms of a legitimately defensible difference”. The ECtHR did not find that there is such an alternative justification that would be acceptable. On the contrary, it notes that in the absence of a “general threat to public safety” “a blanket ban on the wearing in public place of clothing designed to conceal the face” cannot be regarded as proportionate.
The Court finally notes that France “is seeking to protect a principle of interaction between individuals which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society”. It notes thus that the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society, before which the Court has a duty to exercise a degree of restraint. It observes that “in matters of general policy on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight”. It also notes that in Europe there is no consensus as to whether or not there should be a blanket ban on the wearing of the full-face veil in public places.
The Court thus defines the proportionality of the measure in reference to the margin of appreciation left to the state. This is a circular and self-referential reasoning. A control of proportionality would mean examining other measures that might be less intrusive and thus not limiting a liberty protected by the convention more than what would be necessary. In this case since there is no possible evaluation of proportionality, as the wearing of the burka can either be banned or not, the consideration does not make sense. The Court should have examined whether there are alternative ways of guaranteeing the conditions of “living together” and to reach the goal of doing away with the full veil as a symbol of gender oppression like education or engaging in a wider public dialogue on the issue, something that it did not do. Accepting the limitation of a right in reference to the “requirements of living in society” means giving up a right entirely to collective goals. The Court notes that “the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society”.
Deferring to the “margin of appreciation of the state” means that the court allows the limitations to freedom of religion imposed by a state to be. This ruling, in the same line as the Sahin v. Turkey ruling on the compatibility to the ECHR of headscarf prohibitions to students in public universities, is a timid ruling of a hesitant Court which does not see itself legitimized to intervene in the national consensus on delicate issues within the Member States of the Council of Europe.
Suggested Citation: Ioanna Tourkochoriti, The Burka Ban before the European Court of Human Rights: A Comment on S.A.S. v. France, Int’l J. Const. L. Blog, July 9, 2014, available at: http://www.iconnectblog.com/2014/07/the-burka-ban-before-the-european-court-of-human-rights-a-comment-on-s-a-s-v-france
 Judgment of July 1st 2014, Grand Chamber, Appl. No. 43835/11.
 S.A.S. v. France, § 55.
 Id. § 57.
 Id. § 61.
 Id. § 66.
 Id. § 68.
 Id. § 119.
 Id. § 120.
 Id. § 120.
 Id, § 120.
 Id, § 120.
 Id, § 122.
 See Jean Jacques Rousseau, “Discourse on the Origins of Inequality”, in The Basic Political Writings, 50 (Donald A. Cress transl. and Peter Gay Intr. 1987).
 John Stuart Mill, On Liberty, 14, 63 (John Gray ed. 1998).
See generally Ioanna Tourkochoriti, The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the USA, 20 WILLIAM & MARY BILL OF RIGHTS JOURNAL, 791, 847 (2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2028341.
 See Ronald Dworkin, Taking Rights Seriously, 198-199 (1978).
 S.A.S. v. France Judgment Joint Partly Dissenting Opinion of Judges Nussberger and Jäderblom, § 2.
 Id § 5.
 Id § 6, 7.
 Id § 7.
 Id § 8.
 Id § 9.
 Id, § 155.
 Id § 10.
 S.A.S. v. France Judgment, Majority opinion § 152.
 374 U.S. 203, 222 (1963).
 See John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L. J. 1205, at 1274 (1970).
 Id, § 153.
 Id, § 152.
 Id, § 154.
 Id, § 156.
 As the dissenting judges note the Court did not examine alternative measures such as education, S.A.S. v. France Judgment Joint Partly Dissenting Opinion of Judges Nussberger and Jäderblom, § 24.
 Id, § 153.
 Application no. 44774/98, ECHR 2005-XI.