Grand Chamber Judgment Validates the Prohibition on Wearing the Full-Face Veil in Public in France

On July 1, 2014, in a final judgment that cannot be appealed, the European Court of Human Rights (ECHR) in the case of S.A.S v. France (application no. 43835/11), validated French Law no. 2010-1192, which prohibits concealment of one’s face in all places open to the public in France and found that the law does not violate the applicant’s rights under the European Convention on Human Rights.

The Court recognized that the government’s arguments based on security and gender equality were unfounded, but it accepted the argument that wearing full-face veils runs counter to established social norms that are necessary for “living together.”

Law professor Larry Catá Backer notes:

“The Court emphasized that respect for the conditions of ‘living together’ was a legitimate aim for the measure at issue and that, particularly as the State had a lot of room for manoeuvre (‘a wide margin of appreciation’) as regards this general policy question on which there were significant differences of opinion, the ban imposed by the Law of 11 October 2010 did not breach the Convention.”

The EHRC added in its statement accompanying the judgment:

The Court is “able to understand the view that individuals might not wish to see, in places open to all, practices or attitudes which would fundamentally call into question the possibility of open interpersonal relationships.”

The principal facts of the case were previously discussed on Slaw here. To summarize, Ms. S.A.S., a Muslim woman, filed an application to the ECHR on the ground that by criminalizing the covering of her face in areas open to public, the law violated her right to privacy (article 8), her freedom of religion (article 9), her freedom of expression (article 10), and her freedom to peaceful assembly (article 11). She added that the ban from public facilities, the refusal of service and the risk to be fined were degrading treatments in violation of article 3. She stated that these discriminatory policies were also in violation of article 14 of the Convention.

As a result of the ECHR decision, Ms. S.A.S. was not a victim of actionable discrimination. The “ban was not expressly based on the religious connotation of the clothing in question but solely on the fact that it concealed the face,” an ECHR statement read.

It is important to note there is a joint dissenting opinion by judges Nußberger and Jäderblom annexed to the judgment. Although the dissenting judges “acknowledge that the judgment, even if no violation has been found, pursues a balanced approach, carefully ponders many important arguments of those opposed to the prohibition on concealing one’s face in public places and assesses the problems connected with it,” the majority decision “sacrifices concrete individual rights guaranteed by the Convention to abstract principles.”

Further:

“It is doubtful that the blanket ban on wearing a full-face veil in public pursues a legitimate aim. In any event, such a far-reaching prohibition, touching upon the right to one’s own cultural and religious identity, is not necessary in a democratic society.”

In the dissenting judges’ view:

“We find that the criminalisation of the wearing of a full-face veil is a measure that is disproportionate to the aim of protecting the idea of ‘living together’—an aim that cannot readily be reconciled with the Convention’s restrictive catalogue of grounds for interference with basic human rights.”

Another case: France’s veil ban but in a workplace context

On June 25, 2014, the French Court of Cassation, the highest court in the French judiciary, made its ruling in another case relating to France’s veil ban but in a workplace context (n° de pourvoi: E1328369). (This case was also discussed in the previous blog post.) The Court ruled that the employer—a private crèche (daycare centre)—could legally dismiss an employee (Fatima Afif) for wearing an Islamic veil at work, contrary to a workplace policy.

The Court found that sections L. 1121-1 and L. 1321-3 of the French Labour Code allow an employer to put restrictions on an employee’s freedom to express his or her religious beliefs as long as these restrictions are justified by the nature of the job or duties to be accomplished, and proportionate to the purpose sought. The workplace rules of a private company cannot restrict an individual’s fundamental rights if they are general and vague.

The employer in this case included in its internal workplace rules an appropriately precise and clear restriction. Thus, Ms. Afif’s dismissal for cause was correctly rendered on the basis of the violation of this rule. However, the Court added, “This does not mean that the secular principle must necessarily be enforced on private employees who do not render a public service.”

Ms. Afif has already expressed her intention to appeal this case to the ECHR. Note that her statement was made before the ECHR rendered its final decision in the case of S.A.S v. France. While these cases are based on different laws—one applying to employees of public organizations and the other applying to any persons in public places—the purported theory behind them is the same: to maintain secularity and order in French society. And there is little doubt that decisions based on one of the laws will affect cases based on the other. We’ll be sure to keep watching this issue—and these surely won’t be the last challenges to the French laws.