By: Vebjoern Hurum
Over the last years there has been an increase in the support of right-wing and nationalist parties in European countries as a reaction to the increased number of refugees coming to Europe. This has also lead to adoption of anti-immigration legislation by several European countries. Some European countries have adopted legislation which prohibits people to wear full face concealment in public places. France and Belgium introduced this type of legislation in 2011, and Austria, Germany and the Netherlands recently announced that they will do the same.
A prohibition to wear full face concealment in public places affects Muslim women in Europe. Many Muslim women in Europe wear full face concealment such as, niqab and burqa, as part of their religious practice. A full face concealment ban is a significant limitation on their freedom to practice their religion and live in accordance with their spiritual feelings. In Europe, however, all legislation which affects the religious freedom of a human being must be in accordance with article 9 in the European Convention of Human Rights. This provision’s primary purpose is to secure minimum protection of the right to religious freedom. Article 9 has the following wording:
“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.
2. Freedom to manifest one’s religion or beliefs shall be subject only 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”.
The structure of article 9 is simple: there has to be a “limitation” or “interference” from the national authorities with the religious freedom, the measure activated by the national authorities has to be “prescribed by law”, the measure has to follow a “legitimate aim”, and be “necessary in a democratic society”. In the following I will explain why, in my opinion, the European Court of Human Rights has failed to do its job as a guarantor of minimum protection for Muslim women in Europe. The accident happened in a public hearing in the Human Rights Building in Strasbourg on November 27 2013, in the case called S.A.S v. France.
The dispute in S.A.S v. France derives from October 11, 2010 when the French Government adopted a legislation prohibiting the citizens from wearing clothes which cover a person’s face. The wording of the provision affected all types of clothing, and not especially religious clothing, but in fact the prohibition was viewed as an attack on the traditional Muslim wear, niqab. The law became effective in April 2011.
The French niqab law was challenged in European Courts of Human Rights on November 27 2013. The applicant in the case was a French national, originally from Pakistan, who lived with her family in France, in the Paris region. She used to wear a niqab, which is a full face concealment that only shows the eyes of the person, in public places. She did not claim to use the niqab under all circumstances, but only when she felt to do so because of her “spiritual feelings”. In other words, she did not claim to use her niqab during security checks, at banks or in other circumstances where using a niqab is incompatible with a functioning life in a modern western society. The Court held that the French government’s enactment of the niqab law was not in violation of the European Convention of Human Rights (hereinafter Convention).
There were several legal issues addressed in the case. One of the most sensitive issues in the case was whether the French authorities had a legitimate purpose for restricting the religious freedom of Muslim woman. The French government claimed several legitimate aims for their niqab law, but most of the claimed aims were rejected by the Court, because of lack of evidence. The government’s last claimed aim was that the full-face concealment law is supposed to protect the French people’s right of “living together” in the French society. In paragraph 122 the Court explains their understanding of the concept “living together”:
“[..] the face plays an important role in social interaction. [The Court] can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier. That being said, in view of the flexibility of the notion of “living together” and the resulting risk of abuse, the Court must engage in a careful examination of the necessity of the impugned limitation”. (emphasis added).
Based on the cited paragraph above, the Court seems to mean that “living together” is about our minimum possibility to socialize and interact with other persons in the society, and that the full concealment face clothing is contrary to that idea. However, it is important to notice that the Court recognizes the flexibility and risk of abuse of “living together” as a legitimate aim.
On the other side, the majority of the Court still accepted “living together” as a legitimate purpose for restrictions on religious freedom. The majority’s reasoning is problematic for several reasons. First, the majority’s acceptance of “living together” is problematic because the purpose does not have legal basis in the Convention. Article 9 has a list of purposes which can restrict a person’s religious freedom, such as public order. “[L]iving together” is not one of them. However, the majority argued that “living together”, the right to social interaction with other people in public places, could be seen as protection of “the right of others” listed in article 9, giving the niqab law legal basis in the Convention. The case law from the European Court of Human rights shows, however, that the category “rights of others” refers to other rights guaranteed by the Convention, or legal rights granted in the particular member state. “Living together” is not among the rights guaranteed by the Convention and is not a legal right in France. In addition, the majority’s reasoning seems to be inconsistent when elaborating on the legal basis in article 9 for the niqab prohibition. On one hand the majority says:
“The Court reiterates that the enumeration of the exceptions to the individual’s freedom to manifest his or her religion or beliefs, as listed in Article 9 § 2, is exhaustive and that their definition is restrictive”.
In the paragraph above the majority is expressly stating that it is important to interpret the list of legitimate aims in article 9 of the Convention strictly. The majority also underlined that the list is exhaustive, which means that the list of purposes can’t be supplemented by the member states or by an international judge. However, the majority still accepts the “flexible” purpose “living together” as a legitimate purpose for restricting the religious freedom in France.
Second, majority’s reasoning regarding “living together” is problematic from a substantial perspective. The concept of “living together” has a vague and unclear content. Even though the majority seems to view the concept as a right to be able to socially interact with other members of the society in public places, it is not convincing when the majority concludes that full-face concealment is contrary to that idea. In my opinion, even though social interaction is harder with a person wearing a niqab, the dissenting opinion has a point when they are referring to other situations in the French society where people are covering their faces, activities such as skiing, which are not found problematic for social interaction. Some of the skiing activities, where people are wearing helmets and snow glasses, cover even more of the face compared to the niqab. In addition, the majority does not explain the concept any further. The majority should have given more weight to the risk that some of the Muslim women probably will stay at home because they want to respect both the law and live in accordance with their spiritual feelings. It is a paradox that an attempt to improve the social interaction in the society among people is used to legitimate a measure which can lead to less social interaction and makes it more difficult for majority of the French people to socially interact, thereunder communicate, with Muslim women. France runs a risk of completely removing a minority from the social arena, while the purpose of the law is the complete opposite.
The rationale presented by the majority seems to be built on an assumption that all people have an obligation to take part in social interaction in public places. The dissent, on the other hand, underlined “the right to be an outsider”, which is interesting in light of the purpose of promoting social interaction. A crucial aspect in a democratic society is that we have the right to choose how we want to live our lives, as long as we don’t affect other people’s freedom. In this context, article 10 of the Convention has been interpreted to provide a right to remain silent, and article 8 provides a right to private life which gives us a right to choose not to be a part of the public. To be more precise, even though a person does not wear a niqab in the public place the person can still refuse to take part in a conversation, or avoid other people if he or she wants so.
To sum up, the legitimate aim pursued by France, “living together”, does not have legal basis in the Convention, has an unclear content, is contrary to the right to not take part in social interaction, and can actually be counterproductive in form of holding Muslim women away from public places and weaken the social interaction between Muslim women and other people in the French society.
“Living together” is a highly flexible purpose without a clear content, and can be used by national governments in Europe to enact legislation which can enforce assimilation, such as the proposed legislation in Austria, Germany and the Netherlands. At a time where Europe has been forced to deal with several terror attacks executed by radical Islamic groups, there is a high risk of increased polarization in the society, and less social collaboration between the Muslim part of the population and the rest of the French people. This kind of intolerance can possibly work as fuel to the fire for the Islamic groups, and polarize the society even more. The view of the Western governments as the main enemy of Islam becomes much easier to maintain with a larger number of such laws restricting the freedom of religion. European Court of Human Rights failed in their job as a guarantor of minimum protection of human rights, because as long as one is able to leave one’s religion behind in security checks, in banks or in other circumstances where using a niqab is incompatible with a functioning life in a modern western society, one should be able to live out one’s spiritual feelings.
 European Politics Are Swinging to the Right, Time, http://time.com/4504010/europe-politics-swing-right/ (last visited March 19 2017).
 How Europe Is Punishing Migrants, The Washington Post, https://www.washingtonpost.com/graphics/world/migrant-legislation/ (last visited March 19 2017).
 David Harris, Michael O’Boyle & Colin Warbrick, Law of the European Convention on Human Rights, at 592-593 (3rd ed. 2014).
 France: Senate votes for Muslim face veil ban, The Guardian, https://www.theguardian.com/world/2010/sep/14/france-senate-muslim-veil-ban (last visited March 19 2017).
 France’s burqa ban upheld by human rights court, The Guardian, https://www.theguardian.com/world/2014/jul/01/france-burqa-ban-upheld-human-rights-court (last visited March 19 2017).
 France Enforces Ban on Full-Face Veils in Public, http://www.nytimes.com/2011/04/12/world/europe/12france.html (last visited March 19 2017).
 Id. at paragraph 10 and 76
 Id. at paragraph 11.
 Id. at paragraph 12.
 Id. at paragraph 13.
 Id. at paragraph 159.
 Id. at paragraph 122.
 Id. at paragraph 121.
 David Harris, Michael O’Boyle & Colin Warbrick, Law of the European Convention on Human Rights, at 607-608 (3rd ed. 2014).
See for example Eweida and others v. United Kingdom, App. No. 48420/10, 59842/10, 51671/10 and 36516/10, HUDOC, paragraph 106 (2013), http://hudoc.echr.coe.int/eng?i=001-115881, which discusses “protection of rights of others”.
 S.A.S v. France, at paragraph 113.
 Id. at paragraph 122.
 Id. at paragraph 5 of the dissenting opinion.
 Id. at paragraph 9 of the dissenting opinion.
 For a similar view, see Eva Brems: https://strasbourgobservers.com/2014/07/09/s-a-s-v-france-as-a-problematic-precedent/
 S.A.S v. France, at paragraph 8 of the dissenting opinion.
 David Harris, Michael O’Boyle & Colin Warbrick, Law of the European Convention on Human Rights, at 524-526 (3rd ed. 2014).