‘Living together’ in diversity and mutual respect: Some thoughts on SAS v France

Piret Akkerman
LLB Graduate from the University of Hertfordshire

The SAS v France[1] judgment, which was delivered by the European Court of Human Rights (ECtHR) on the 1st of July 2014, introduced a new ground to justify interference with an individual’s religious freedom under the European Convention on Human Rights (ECHR). In light of recent public debates on an evolving pluralistic and diverse society, this blog post revisits the judgment and discusses its wider impact.

The applicant was a French Muslim woman who voluntarily and intermittently wore the burqa and niqab (‘the full veil’). Since the enactment of the French law No. 2010-1192 of October 2010, which criminalised the concealment of one’s face in public, she was unable to lawfully do so. Consequently, she complained of violations of Articles 3, 8, 9, 10, 11, and 14 of the ECHR. The court dismissed the claims under Articles 3, 10 and 11, and focused its assessment mainly on Article 9 concerning religious freedom. The French government argued that the law was necessary to (1) protect public safety and (2) “respect the minimum values of a democratic society”, namely gender equality, human dignity and the minimum requirements of “living together”. The court ultimately found no violation of the ECHR by linking the concept of “living together” to the legitimate aim of “protection of the rights and freedoms of others” in Article 9(2) and affording France a wide margin of appreciation in organising its society.

In its assessment, the court found though a “continuing interference” with Articles 8 and 9, as the applicant had to either conform to the law or face criminal sanctions.[2] Thereafter, it had to consider whether this interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society” to fulfil that aim.[3] The first condition was swiftly satisfied as the limitation emanated from a French statute.

It was accepted that the ban could pursue the aim of ‘public safety’. As the second aim of protecting the “minimum values of a democratic society” was not expressly contained in the ECHR, the court had to consider whether any of the three submitted values could be linked to a legitimate aim under article 9(2) (para. 82). It was held that the concept of “living together” could be linked to the “protection of the rights and freedoms of others”.[4] In doing so, the court accepted the Government’s arguments regarding the importance of face in social interaction and that covering it would breach the right of others “to live in a space of socialisation”.

In the proportionality assessment, the court rejected the applicant’s argument that the ban was based on a stereotypical view of all women being coerced into wearing the veil (para. 137). However, it acknowledged that the ban forced the women to give up a part of their identity (para. 139). Considering the lack of general threat posed by face concealment and the availability of less restrictive means, the court found that the measure involved a disproportionate interference with Article 9 rights when balanced against public safety.

However, the ban was held proportionate in order to respect the minimum requirements of ‘living together’ in an open society. In its evaluation the court expressed concern over the ban’s negative effect on veil-wearers and the Islamophobic comments made during the legislative debate. Conversely, it accepted that a State may give particular weight to social interaction and that this may be unduly affected by the concealment of faces. Furthermore, it noted the ban’s limited scope, its adoption following a democratic process, the light sanctions and the lack of European consensus on veil wearing.

Numerous contradictions emerge from the reasoning. Firstly, the ruling conflicts with the court’s prior jurisprudence. Previously, the court had developed a pattern of awarding a wide margin of appreciation where religious freedom was limited in public/educational institutions[5], and a narrow one in cases concerning the general public.[6] The judges here, by allowing wide discretion in relation to a blanket ban, have steered the law in a new and unwelcome direction.

Secondly, whilst the court acknowledged the need for a careful proportionality assessment, it failed to do so by granting France a wide margin of appreciation. In doing so, the court particularly emphasised that the ban was adopted following a democratic process. However, considering that during the pre-legislative process only one veil-wearing woman was interviewed[7], it can hardly be said that the minority concerned was allowed a say in the process.

Thirdly, the court’s finding as to the ban’s religious neutrality is perplexing. Overwhelming evidence existed that the law expressly targeted the full veil.[8] The court had already faced a similar scenario in Arslan[9] where a blanket ban on religious dress in public spaces (except religious holidays) was found to violate Article 9. Instead of following Arslan to reach a fairer conclusion, the court .artificially distinguished SAS on the basis that the restriction in Arslan was expressly based on the religious association of the clothing. The reasoning is unpersuasive as the court considered the ban not to be religiously motivated, yet went on to grant a wide margin of appreciation in the matters “concerning the State and religion”.

Furthermore, the lack of European consensus is highly disputable. Arguably, the absence of general bans in 45 other states combined with the general stance of international law[10] on the matter constitutes a consensus itself.[11]

Finally, the court failed to evaluate the success of the ban in pursuing the legitimate aim. Evidence indicates that the law has in fact frustrated social interaction, instead of promoting it.[12] The third party interveners’ studies demonstrate that the ban isolated the women and increased aggression towards them.[13] Thus, the court sanctioned a law that in fact constitutes an obstacle to living together.[14]

The acceptance of this new legitimate aim has considerably expanded the pre-existing grounds for ECHR derogations. As the court failed to clearly define the concept of ‘living together’, the decision’s full impact remains to be seen. However, it could be questioned whether the majority has been permitted to dictate the minorities as any conduct causing discomfort to the majority could theoretically now be challenged.[15]

The judgment raises a question whether much is left of religious freedom at all. Previously, the court’s refusal to properly interpret Article 9 has produced varying levels of religious freedom in Europe.[16] Additionally, the ECtHR appears biased by being more willing to protect Christian notions[17] than those of Muslims.[18] All this will undoubtedly contribute to the rise of Islamophobia and further marginalise an already unpopular minority.

On a wider scale, the decision could be detrimental to the uniform protection of human rights in Europe by limiting the “free-choice conception” of such rights.[19]  Women in the applicant’s situation will now be coerced to obey the law contrary to their conscience.[20] Moreover, a general duty to socialise as implied by the judgment would be undesirable, as an autonomous individual has the “right to be an outsider”.[21] The court, instead of encouraging diversity and mutual respect, has instead stifled religious freedom and the right to non-discrimination.

[1](2015) 60 EHRR 11

[2] Dudgeon v UK (A/45) 22 October 1981 [41]

[3] ECHR articles 8(2) and 9(2)

[4] It is worth mentioning that the court rejected the Government’s submission under ‘gender equality’ by explaining that the concept could not be invoked to ban a practice defended by women themselves (para. 119). Previously, the court had found a mere hijab incompatible with gender equality by presuming it was imposed on women by the Koran. See Dahlab v Switzerland [2001] ECtHR (No. 42393/98) (15 January 2001); Leyla Sahin v Turkey (2004) 44 EHRR 99.; See for a comment Stephanie Berry, ‘SAS v France: Does Anything Remain of the Right to Manifest Religion?’ (Blog of the European Journal of International Law, 2 July 2014); The court similarly rejected the Government’s submission under ‘dignity’. In reaching its conclusion, the judges interestingly considered the impact on the dignity of others, as opposed to the dehumanisation of the veil-wearers themselves advanced by the Government. See John Adenitire, ‘Has the European Court of Human Rights recognised a legal right to glance at a smile?’ (2015) LQR 43, 46

[5] Dahlab; Leyla Sahin

[6] Serif v Greece Application App no 38178/97 (ECHR, 14 December1999)

[7] Case comment, ‘Religion: full-face veil-ban in public places-Islam-women’ (2014) EHRLR 647, 650

[8] Parliamentary Commission report (26 January 2010); Conceil d’Etat study on “the possible legal grounds for banning the full veil” (adopted by the Plenary General Assembly on 25 March 2010); exposé des motifs of the French law (Assemblée Nationale, 19 May 2010) http://www.assemblee-nationale.fr/13/projets/pl2520.asp accessed 5 December 2015

[9] Ahmet Arslan v Turkey (2001) 31 EHRR 264

[10] For example Resolution 1743 (2010) of the Parliamentary Assembly of the Council of Europe on Islam, Islamism and Islamophobia in Europe (adopted 23 June 2010); Human rights in Europe: no grounds for complacency. Viewpoints by Thomas Hammarberg, Council of Europe Commissioner for Human Rights (2011) Council of Europe Publishing p 39-43

[11] Francois-Xavier Millet, ‘When the European Court of Human Rights encounters the face: a case-note on the burqa ban in France’ (2015) ECL Review 408; SAS [19]

[12] John Adenitire, ‘SAS v France: fidelity to law and conscience’ (2015) EHRLR 78, 85

[13] ‘Written submission by the Human Rights Centre of Ghent University’ http://www.hrc.ugent.be/wp-content/uploads/2015/11/SAS.pdf accessed 2 December 2015

[14] Adenitire 85; Erica Howard, ‘S.A.S. v France: Living Together or Increased Social Division?’(Blog of the European Journal of International Law, 7 July 2014) http://www.ejiltalk.org/s-a-s-v-france-living-together-or-increased-social-division/ accessed 6 December 2015

[15] Case comment 652; Lucy Vickers, ‘Conform or be confined: SAS v France’ (Oxford Human Rights Hub, 8 July 2014) http://ohrh.law.ox.ac.uk/conform-or-be-confined-s-a-s-v-france/ accessed 5 December 2015

[16] Mark Janis, Richard Kay and Anthony Bradley, European Human Rights Law, Texts and Materials, (Third Edition, OUP 2008) 370

[17] Otto-Preminger-Institut v Austria (1994) 19 EHRR 34; Murphy v Ireland (2003) 38 EHRR 212; Lautsi v Italy (2011) 54 EHRR 60

[18] Leyla Sahin

[19] Millet 409

[20] Adenitire 86

[21] Adenitire 46


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