ECtHR, S.A.S. v. France, Grand Chamber, App. No, 43835/11 (2014), excerpt

ECtHR, S.A.S. v. France, (Grand Chamber)

App. No. 43835/11 (2015)

 

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

10.  The applicant is a French national who was born in 1990 and lives in France.

11.  In the applicant’s submission, she is a devout Muslim and she wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. According to her explanation, the burqa is a full-body covering including a mesh over the face, and the niqab is a full-face veil leaving an opening only for the eyes. The applicant emphasised that neither her husband nor any other member of her family put pressure on her to dress in this manner.

12.  The applicant added that she wore the niqab in public and in private, but not systematically: she might not wear it, for example, when she visited the doctor, when meeting friends in a public place, or when she wanted to socialise in public. She was thus content not to wear the niqab in public places at all times but wished to be able to wear it when she chose to do so, depending in particular on her spiritual feelings. There were certain times (for example, during religious events such as Ramadan) when she believed that she ought to wear it in public in order to express her religious, personal and cultural faith. Her aim was not to annoy others but to feel at inner peace with herself.

13.  The applicant did not claim that she should be able to keep the niqab on when undergoing a security check, at the bank or in airports, and she agreed to show her face when requested to do so for necessary identity checks.

14.  Since 11 April 2011, the date of entry into force of Law no. 2010-1192 of 11 October 2010 throughout France, it has been prohibited for anyone to conceal their face in public places.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  The Law of 11 October 2010 “prohibiting the concealment of one’s face in public places”

2.  Relevant provisions of Law no. 2010-1192

28.  Sections 1 to 3 (in force since 11 April 2011) of Law no. 20101192 of 11 October 2010 “prohibiting the concealment of one’s face in public places” read as follows:

Section 1

“No one may, in public places, wear clothing that is designed to conceal the face.”

Section 2

“I. - For the purposes of section 1 hereof, ‘public places’ comprise the public highway and any places open to the public or assigned to a public service.

II. - The prohibition provided for in section 1 hereof shall not apply if the clothing is prescribed or authorised by primary or secondary legislation, if it is justified for health or occupational reasons, or if it is worn in the context of sports, festivities or artistic or traditional events.”

Section 3

“Any breach of the prohibition laid down in section 1 hereof shall be punishable by a fine, at the rate applying to second-class petty offences (contraventions) [150 euros maximum].

An obligation to follow a citizenship course, as provided at paragraph 8o of Article 131-16 of the Criminal Code, may be imposed in addition to or instead of the payment of a fine.”

The provisions for the obligation to follow a citizenship course can be found in Articles R. 131-35 to R. 131-44 of the Criminal Code. The purpose of the course is to remind the convicted persons of the Republican values of tolerance and respect for the dignity of the human being and to make them aware of their criminal and civil liability, together with the duties that stem from life in society. It also seeks to further the person’s social integration (Article R. 13135).…

37.  The Commissioner for Human Rights of the Council of Europe, published the following “Viewpoint” (see Human rights in Europe: no grounds for complacency. Viewpoints by Thomas Hammarberg, Council of Europe Commissioner for Human Rights, Council of Europe Publishing, 2011, pp. 39-43):

“Prohibition of the burqa and the niqab will not liberate oppressed women, but might instead lead to their further exclusion and alienation in European societies. A general ban on such attire constitutes an ill-advised invasion of individual privacy and, depending on its terms, also raises serious questions about whether such legislation is compatible with the European Convention on Human Rights.

Two rights in the Convention are particularly relevant to this debate about clothing. One is the right to respect for one’s private life and personal identity (Article 8). The other is the freedom to manifest one’s religion or belief ‘in worship, teaching, practice and observance’ (Article 9).

Both Convention articles specify that these rights can only be subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Those who have argued for a general ban of the burqa and the niqab have not managed to show that these garments in any way undermine democracy, public safety, order or morals. The fact that a very small number of women wear such clothing has made such proposals even less convincing.

Nor has it been possible to prove that women wearing this attire are victims of more gender repression than others. Those interviewed in the media have presented a diversity of religious, political and personal arguments for their decision to dress as they do. There may of course be cases where women are under undue pressure to dress in a certain way – but it has not been shown that a ban would be welcomed by them.

There is of course no doubt that the status of women is an acute problem – and that this problem may be particularly true in relation to some religious communities. This needs to be discussed, but prohibiting the supposed symptoms – such as clothing – is not the way to do it. Dress, after all, may not reflect specific religious beliefs, but the exercise of broader cultural expression.

It is right and proper to react strongly against any regime ruling that women must wear these garments. This is in clear contravention of the Convention articles cited above, and is unacceptable, but it is not remedied by banning the same clothing in other countries.

The consequences of decisions in this area must be assessed. For instance, the suggestion that women dressed in a burqa or niqab be banned from public institutions like hospitals or government offices may result in these women avoiding such places entirely, and that is clearly wrong.

It is unfortunate that in Europe, public discussion of female dress, and the implications of certain attire for the subjugation of women, has almost exclusively focused on what is perceived as Muslim dress. The impression has been given that one particular religion is being targeted. Moreover, some arguments have been clearly Islamophobic in tenor and this has certainly not built bridges nor encouraged dialogue….

 

THE LAW…

IV.  ALLEGED VIOLATION OF ARTICLES 8, 9 AND 10 OF THE CONVENTION, TAKEN SEPARATELY AND TOGETHER WITH ARTICLE 14

69.  The applicant complained … of a violation of Article 14 of the Convention taken together with Article 3. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”...

74.  The applicant complained for the same reasons of a violation of her right to respect for her private life, her right to freedom to manifest her religion or beliefs and her right to freedom of expression, together with discrimination in the exercise of these rights. She relied on Articles 8, 9 and 10 of the Convention, taken separately and together with the above-cited Article 14….

B.  Merits

1.  The parties’ submissions

(a)  The applicant

76.  In the applicant’s submission, she was born in Pakistan and her family belongs to a Sunni cultural tradition in which it is customary and respectful for women to wear a full-face veil in public. She claimed to have sustained a serious interference with the exercise of her rights under Article 9, as the Law of 11 October 2010, which sought to prohibit Muslim women from wearing the full-face veil in public places, prevented her from manifesting her faith, from living by it and from observing it in public. She added that, whilst the interference was “prescribed by law”, it did not pursue any of the legitimate aims listed in the second paragraph of that provision and was not “necessary in a democratic society”.

77.  The applicant began by observing that this interference could not be said to have the legitimate aim of “public safety” as it was not a measure intended to address specific safety concerns in places of high risk such as airports, but a blanket ban applying to almost all public places. As to the Government’s argument that it sought to ensure respect for the minimum requirements of life in society, because the reciprocal exposure of faces was fundamental in French society, the applicant objected that it failed to take into account the cultural practices of minorities which did not necessarily share this philosophy or the fact that there were forms of communication other than visual, and that in any event this bore no relation to the idea of imposing criminal sanctions to prevent people from veiling their faces in public. She submitted, moreover, that the Government’s assertion that for women to cover their faces was incompatible with the principle of gender equality was simplistic. She argued that, according to a well-established feminist position, the wearing of the veil often denoted women’s emancipation, self-assertion and participation in society, and that, as far as she was concerned, it was not a question of pleasing men but of satisfying herself and her conscience. Furthermore, it could not be maintained that because of wearing the veil the women concerned were denied the right to exist as individuals in public, when in the majority of cases it was worn voluntarily and without any proselytising motive. She added that other member States with a strong Muslim population did not prohibit the wearing of the full-face veil in public places. She also found it ironic that an abstract idea of gender equality could run counter to the profoundly personal choice of women who decided to wear veils, and contended that imposing legal sanctions exacerbated the inequality that was supposed to be addressed. Lastly, she took the view that in claiming that the prohibition had the legitimate aim of “respect for human dignity” the Government were justifying the measure by the abstract assumption, based on stereotyping and chauvinistic logic, that women who wore veils were “effaced”.

78.  Under the heading of “necessity”, the applicant argued that a truly free society was one which could accommodate a wide variety of beliefs, tastes, pursuits, customs and codes of conduct, and that it was not for the State to determine the validity of religious beliefs. In her view, the prohibition on wearing the full-face veil in public and the risk of criminal sanctions sent out a sectarian message and discouraged the women concerned from socialising. She pointed out that the Human Rights Committee, in its General Comment no. 28, had found that any regulation of clothing that women could wear in public might breach the principle of equal rights for men and women, and in its decision in Raihon Hudoyberganova v. Uzbekistan (cited above), had observed that the freedom to manifest one’s religion encompassed the right to wear clothes or attire in public which were in conformity with the individual’s faith or religion. She further observed that, whilst the Law of 11 October 2010 had been passed almost unanimously, the above-cited cases of Dudgeon, Norris and Modinos showed that a measure might have wide political support and yet not be “necessary in a democratic society”.

Moreover, even supposing that the aims pursued were legitimate, the impugned prohibition could not fulfil that condition where they might be achieved by less restrictive means. Thus, to address the questions of public safety, it would be sufficient to implement identity checks at high-risk locations, as in the situations examined by the Court in the cases of Phull v. France ((dec.), no. 35753/03, ECHR 2005I) and El Morsli v. France ((dec.), no. 15585/06, 4 March 2008). As to the aim of guaranteeing respect for human dignity, it was still necessary to weigh up the competing interests: those of members of the public who disapproved of the wearing of the veil; and those of the women in question who, like the applicant, were forced to choose between acting in a manner contrary to their beliefs, staying at home or breaking the law. The rights of the latter were much more seriously affected than those of the former. In the applicant’s view, if it were considered, as the Government argued, that it was necessary to criminalise not only the coercion of another into veiling but also the fact of voluntarily wearing the veil, on the grounds that women might be reluctant to denounce those who coerced them and that constraint might be diffuse in nature, that would mean disregarding the position or motivation of women who chose to cover their faces and therefore excluding any examination of proportionality. Such an attitude was not only paternalistic, but it also reflected an intention to punish the very women who were supposed to be protected from patriarchal pressure. Lastly, the applicant found irrelevant the Government’s comment that freedom to dress according to one’s wishes remained very broad in France and that the ban did not apply in places of worship open to the public, pointing out that her beliefs precisely required her to cover her face and that it should be possible to manifest one’s religion in public, not only in places of worship…

80.  The applicant further argued that the ban on wearing clothing designed to conceal the face in public, which undoubtedly targeted the burqa, generated discrimination in breach of Article 14 on grounds of sex, religion and ethnic origin, to the detriment of Muslim women who, like her, wore the full-face veil. In her view this was indirect discrimination between Muslim women whose beliefs required them to wear the full-face veil and other Muslim women, and also between them and Muslim men. The exception provided for by the Law, according to which the ban did not apply if the clothing was worn in the context of “festivities or artistic or traditional events” was also, in her view, discriminatory, in that it created an advantage for the Christian majority: it allowed Christians to wear in public clothing that concealed their face in the context of Christian festivities or celebrations (Catholic religious processions, carnivals or rituals, such as dressing up as Santa Claus) whereas Muslim women who wished to wear the full-face veil in public remained bound by the ban even during the month of Ramadan.

(b)  The Government

81.  The Government admitted that, even though it was formulated in general terms, the ban introduced by the Law of 11 October 2010 could be seen as a “limitation”, within the meaning of Article 9 § 2 of the Convention, on the freedom to manifest one’s religion or beliefs. They argued, however, that the limitation pursued legitimate aims and that it was necessary, in a democratic society, for the fulfilment of those aims.

82.  In the Government’s submission, the first of those aims was to ensure “public safety”. The ban satisfied the need to identify individuals so as to prevent danger for the safety of persons and property and to combat identity fraud. The second of those aims concerned the “protection of the rights and freedoms of others” by ensuring “respect for the minimum set of values of an open and democratic society”. The Government mentioned three values in this connection. First, the observance of the minimum requirements of life in society. In the Government’s submission, the face plays a significant role in human interaction: more so than any other part of the body, the face expresses the existence of the individual as a unique person, and reflects one’s shared humanity with the interlocutor, at the same time as one’s otherness. The effect of concealing one’s face in public places is to break the social tie and to manifest a refusal of the principle of “living together” (le “vivre ensemble”). The Government further argued that the ban sought to protect equality between men and women, as to consider that women, solely on the ground that they were women, must conceal their faces in public places, amounted to denying them the right to exist as individuals and to reserving the expression of their individuality to the private family space or to an exclusively female space. Lastly, it was a matter of respect for human dignity, since the women who wore such clothing were therefore “effaced” from public space. In the Government’s view, whether such “effacement” was desired or suffered, it was necessarily dehumanising and could hardly be regarded as consistent with human dignity.

On the question of gender equality, the Government expressed surprise at the applicant’s statements to the effect that the practice of wearing the full-face veil often denoted the woman’s emancipation, self-assertion and participation in society, and they did not agree with the highly positive presentation of that practice by the applicant and the intervening non-governmental organisations. They took note of the study reports presented by two of the third-party interveners, showing that women who wore or used to wear the full-face veil did so voluntarily and those that had given up the practice had done so mainly as a result of public hostility. They observed, however, that those studies were based on only a small sample group of women (twenty-seven in one case, thirty-two in the other) recruited using the “snowball method”. That method was not very reliable, as it consisted in targeting various people fitting the subject profile and then, through them, reaching a greater number of people who generally shared the same views. They concluded that the reports in question provided only a very partial view of reality and that their scientific relevance had to be viewed with caution.

83.  As regards the necessity and proportionality of the limitation, the Government argued that the Law of 11 October 2010 had been passed both in the National Assembly and the Senate by the unanimous vote of those cast (less one vote), following a wide democratic consultation involving civil society. They pointed out that the ban in issue was extremely limited in terms of its subject matter, as only concealment of the face was prohibited, irrespective of the reason, and everyone remained free, subject to that sole restriction, to wear clothing expressing a religious belief in public. They added that the Law was necessary for the defence of the principles underlying its enactment. They indicated in this connection that to restrict sanctions only to those coercing someone else to cover their face would not have been sufficiently effective because the women concerned might have hesitated to report it and coercion could always be diffuse in nature. They further pointed out that the Court afforded States a wide margin of appreciation when it came to striking a balance between competing private and public interests, or where a private interest was in conflict with other rights secured by the Convention (they referred to Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007I). They further took the view that the penalties stipulated were light – a mere fine of 150 euros or a citizenship course. They noted that both the Constitutional Council and the Court of Cassation had recognised the “necessity” of the Law….

85.  Lastly, the Government found the applicant “particularly ill-placed to consider herself a victim of discrimination on account of her sex”, as one of the essential objectives of the impugned Law was to combat that type of discrimination as a result of women being effaced from public space through the wearing of the full-face veil. In their view, the assertion that the Law had been based on a stereotype whereby Muslim women were submissive was unfounded and caricatural: firstly, because the Law did not target Muslim women; and secondly, because the social effacement manifested by the wearing of the burqa or niqab was “hardly compatible with the affirmation of a social existence”. In their opinion, it was not possible to infer from Article 14 of the Convention a right to place oneself in a position of discrimination. As to the contention that one of the effects of the Law would be to dissuade the women concerned from going to public places and to confine them at home, it was particularly futile in the instant case since the applicant claimed that she wore this clothing only voluntarily and occasionally.

     The Government added that the Law did not create any discrimination against Muslim women either. They observed in this connection that the practice of wearing the full-face veil was a recent development, quite uncommon in France, and that it had been criticised on many occasions by high-profile Muslims. The prohibition in fact applied regardless of whether or not the reason for concealing the face was religious, and regardless of the sex of the individual. Lastly, they pointed out that the fact that certain individuals who wished to adopt behaviour which they justified by their beliefs, whether or not religious, were prevented from doing so by a statutory prohibition could not in itself be considered discriminatory where the prohibition had a reasonable basis and was proportionate to the aim pursued. They referred on this point to their previous arguments….

3.  The Court’s assessment…

(iv)  Whether the measure is necessary in a democratic society

(α)  General principles concerning Article 9 of the Convention

123.  As the Court has decided to focus on Article 9 of the Convention in examining this part of the application, it finds it appropriate to reiterate the general principles concerning that provision.

124.  As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A; Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I; and Leyla Şahin, cited above, § 104).

125.  While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists the various forms which the manifestation of one’s religion or beliefs may take, namely worship, teaching, practice and observance (see, mutatis mutandis, Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 73, ECHR 2000-VII, and Leyla Şahin, cited above, § 105).

Article 9 does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one’s religion or beliefs (see, for example, Arrowsmith v. the United Kingdom, no. 7050/75, Commission’s report of 12 October 1978, DR 19; Kalaç v. Turkey, 1 July 1997, § 27, Reports of Judgments and Decisions 1997IV; and Leyla Şahin, cited above, §§ 105 and 121).

126.  In 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 (see Kokkinakis, cited above, § 33). This follows both from paragraph 2 of Article 9 and from the State’s positive obligations under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined therein (see Leyla Şahin, cited above, § 106).

127.  The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. As indicated previously, it also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports 1996-IV; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000XI; and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 91, ECHR 2003-II), and that this duty requires the State to ensure mutual tolerance between opposing groups (see, among other authorities, Leyla Şahin, cited above, § 107). Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999IX; see also Leyla Şahin, cited above, § 107).

128.  Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair treatment of people from minorities and avoids any abuse of a dominant position (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999III). 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 (see, mutatis mutandis, the United Communist Party of Turkey and Others, cited above, § 45, and Refah Partisi (the Welfare Party) and Others, cited above § 99). Where these “rights and freedoms of others” are themselves among those guaranteed by the Convention or the Protocols thereto, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society” (see Chassagnou and Others, cited above, § 113; see also Leyla Şahin, cited above, § 108).

129.  It is also important to emphasise the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. 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 (see, for example, Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005IX). This is the case, in particular, where questions concerning the relationship between State and religions are at stake (see, mutatis mutandis, Cha’are Shalom Ve Tsedek, cited above, § 84, and Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; see also Leyla Şahin, cited above, § 109). As regards Article 9 of the Convention, the State should thus, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one’s religion or beliefs is “necessary”. That being said, in delimiting the extent of the margin of appreciation in a given case, the Court must also have regard to what is at stake therein (see, among other authorities, Manoussakis and Others, cited above, § 44, and Leyla Şahin, cited above, § 110). It may also, if appropriate, have regard to any consensus and common values emerging from the practices of the States parties to the Convention (see, for example, Bayatyan v. Armenia [GC], no. 23459/03, § 122, ECHR 2011).

130.  In the Leyla Şahin judgment, the Court pointed out that this would notably be the case when it came to regulating the wearing of religious symbols in educational institutions, especially in view of the diversity of the approaches taken by national authorities on the issue. Referring to the Otto-Preminger-Institut v. Austria judgment (20 September 1994, § 50, Series A no. 295-A) and the Dahlab v. Switzerland decision (no. 42393/98, ECHR 2001-V), it added that it was thus not possible to discern throughout Europe a uniform conception of the significance of religion in society and that the meaning or impact of the public expression of a religious belief would differ according to time and context. It observed that the rules in this sphere would consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. It concluded from this that the choice of the extent and form of such rules must inevitably be left up to a point to the State concerned, as it would depend on the specific domestic context (see Leyla Şahin, cited above, § 109).

131.  This margin of appreciation, however, goes hand in hand with a European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see, among other authorities, Manoussakis and Others, cited above, § 44, and Leyla Şahin, cited above, § 110)….

(γ)  Application of those principles to the present case

137.  The Court would first emphasise that the argument put forward by the applicant and some of the third-party interveners, to the effect that the ban introduced by sections 1 to 3 of the Law of 11 October 2010 was based on the erroneous supposition that the women concerned wore the full-face veil under duress, is not pertinent. It can be seen clearly from the explanatory memorandum accompanying the Bill (see paragraph 25 above) that it was not the principal aim of the ban to protect women against a practice which was imposed on them or would be detrimental to them.

138.  That being clarified, the Court must verify whether the impugned interference is “necessary in a democratic society” for public safety (within the meaning of Articles 8 and 9 of the Convention; see paragraph 115 above) or for the “protection of the rights and freedoms of others” (see paragraph 116 above).

139.  As regards the question of necessity in relation to public safety, within the meaning of Articles 8 and 9 (see paragraph 115 above), the Court understands that a State may find it essential to be able to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud. It has thus found no violation of Article 9 of the Convention in cases concerning the obligation to remove clothing with a religious connotation in the context of security checks and the obligation to appear bareheaded on identity photos for use on official documents (see paragraph 133 above). However, in view of its impact on the rights of women who wish to wear the full-face veil for religious reasons, a blanket ban on the wearing in public places of clothing designed to conceal the face can be regarded as proportionate only in a context where there is a general threat to public safety. The Government have not shown that the ban introduced by the Law of 11 October 2010 falls into such a context. As to the women concerned, they are thus obliged to give up completely an element of their identity that they consider important, together with their chosen manner of manifesting their religion or beliefs, whereas the objective alluded to by the Government could be attained by a mere obligation to show their face and to identify themselves where a risk for the safety of persons and property has been established, or where particular circumstances entail a suspicion of identity fraud. It cannot therefore be found that the blanket ban imposed by the Law of 11 October 2010 is necessary, in a democratic society, for public safety, within the meaning of Articles 8 and 9 of the Convention.

140.  The Court will now examine the questions raised by the other aim that it has found legitimate: to ensure the observance of the minimum requirements of life in society as part of the “protection of the rights and freedoms of others” (see paragraphs 121-122 above).

141.  The Court observes that this is an aim to which the authorities have given much weight. This can be seen, in particular, from the explanatory memorandum accompanying the Bill, which indicates that “[t]he voluntary and systematic concealment of the face is problematic because it is quite simply incompatible with the fundamental requirements of ‘living together’ in French society” and that “[t]he systematic concealment of the face in public places, contrary to the ideal of fraternity, ... falls short of the minimum requirement of civility that is necessary for social interaction” (see paragraph 25 above). It indeed falls within the powers of the State to secure the conditions whereby individuals can live together in their diversity. Moreover, the Court is able to accept 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 (see paragraph 122 above).

142.  Consequently, the Court finds 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”.

143.  It remains to be ascertained whether the ban is proportionate to that aim.

144.  Some of the arguments put forward by the applicant and the intervening non-governmental organisations warrant particular attention.

145.  First, it is true that only a small number of women are concerned. It can be seen, among other things, from the report “on the wearing of the full-face veil on national territory” prepared by a commission of the National Assembly and deposited on 26 January 2010, that about 1,900 women wore the Islamic full-face veil in France at the end of 2009, of whom about 270 were living in French overseas administrative areas (see paragraph 16 above). This is a small proportion in relation to the French population of about sixty-five million and to the number of Muslims living in France. It may thus seem excessive to respond to such a situation by imposing a blanket ban.

146.  In addition, there is no doubt that the ban has a significant negative impact on the situation of women who, like the applicant, have chosen to wear the full-face veil for reasons related to their beliefs. As stated previously, they are thus confronted with a complex dilemma, and the ban may have the effect of isolating them and restricting their autonomy, as well as impairing the exercise of their freedom to manifest their beliefs and their right to respect for their private life. It is also understandable that the women concerned may perceive the ban as a threat to their identity.

147.  It should furthermore be observed that a large number of actors, both international and national, in the field of fundamental rights protection have found a blanket ban to be disproportionate. This is the case, for example, of the French National Advisory Commission on Human Rights (see paragraphs 18-19 above), non-governmental organisations such as the third-party interveners, the Parliamentary Assembly of the Council of Europe (see paragraphs 35-36 above) and the Commissioner for Human Rights of the Council of Europe (see paragraph 37 above).

148.  The Court is also aware that the Law of 11 October 2010, together with certain debates surrounding its drafting, may have upset part of the Muslim community, including some members who are not in favour of the full-face veil being worn.

149.  In this connection, the Court is very concerned by the indications of some of the third-party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010 …

150.  The other arguments put forward in support of the application must, however, be qualified.

151.  Thus, while it is true that the scope of the ban is broad, because all places accessible to the public are concerned (except for places of worship), the Law of 11 October 2010 does not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face. The Court is aware of the fact that the impugned ban mainly affects Muslim women who wish to wear the full-face veil. It nevertheless finds it to be of some significance 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…

152.  As to the fact that criminal sanctions are attached to the ban, this no doubt increases the impact of the measure on those concerned. It is certainly understandable that the idea of being prosecuted for concealing one’s face in a public place is traumatising for women who have chosen to wear the full-face veil for reasons related to their beliefs. It should nevertheless be taken into account that the sanctions provided for by the Law’s drafters are among the lightest that could be envisaged, because they consist of a fine at the rate applying to second-class petty offences (currently 150 euros maximum), with the possibility for the court to impose, in addition to or instead of the fine, an obligation to follow a citizenship course.

153.  Furthermore, admittedly, as the applicant pointed out, by prohibiting everyone from wearing clothing designed to conceal the face in public places, the respondent State has to a certain extent restricted the reach of pluralism, since the ban prevents certain women from expressing their personality and their beliefs by wearing the full-face veil in public. However, for their part, the Government indicated that it was a question of responding to a practice that the State deemed incompatible, in French society, with the ground rules of social communication and more broadly the requirements of “living together”. From that perspective, the respondent State 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 (see paragraph 128 above). It can thus be said that the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society.

154.  In such circumstances, the Court has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question. The Court has, moreover, already had occasion to observe 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 (see paragraph 129 above).

155.  In other words, France had a wide margin of appreciation in the present case.

156.  This is particularly true as there is little common ground amongst the member States of the Council of Europe (see, mutatis mutandis, X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997II) as to the question of the wearing of the full-face veil in public. The Court thus observes that, contrary to the submission of one of the third-party interveners (see paragraph 105 above), there is no European consensus against a ban. Admittedly, from a strictly normative standpoint, France is very much in a minority position in Europe: except for Belgium, no other member State of the Council of Europe has, to date, opted for such a measure. It must be observed, however, that the question of the wearing of the full-face veil in public is or has been a subject of debate in a number of European States. In some it has been decided not to opt for a blanket ban. In others, such a ban is still being considered (see paragraph 40 above). It should be added that, in all likelihood, the question of the wearing of the full-face veil in public is simply not an issue at all in a certain number of member States, where this practice is uncommon. It can thus be said 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.

157.  Consequently, having regard in particular to the breadth of the margin of appreciation afforded to the respondent State in the present case, the Court finds that the ban imposed by the Law of 11 October 2010 can be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”.

158.  The impugned limitation can thus be regarded as “necessary in a democratic society”. This conclusion holds true with respect both to Article 8 of the Convention and to Article 9.

159.  Accordingly, there has been no violation either of Article 8 or of Article 9 of the Convention….

 

FOR THESE REASONS, THE COURT

…2.  Declares, unanimously, the complaints concerning Articles 8, 9 and 10 of the Convention, taken separately and together with Article 14 of the Convention, admissible, and the remainder of the application inadmissible;

 …4.  Holds, by fifteen votes to two, that there has been no violation of Article 9 of the Convention…