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SAS v France
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1 User Commentary

Melanie Davidson (In-house lawyer) 28 September 2015

Case Commentary: S.A.S. v France (Application No. 43835/11)

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Whether France's absolute ban on wearing garments concealing the face in public violates Articles 3, 8-11 and 14 of the European Convention on Human Rights (ECHR)

Judgment was handed down by Dean Spielmann, President of the Court, in the case of S.A.S. v France (Application No. 43835/11) on 1st July 2014. The applicant brought the case against the French government under Article 34 of the ECHR, contesting the implementation of Law no. 2010-1192 of 11th October 2010, establishing a ban on anyone concealing their face in public. Amnesty International, Liberty, Open Society Initiative, ARTICLE 19, the Human Rights Centre of Ghent University and the Belgian Government were given leave to submit written comments. The Belgian Government was also given leave to participate in the hearing.

The Facts

The applicant is a French national born in 1990 and living in France. As a devout Muslim she wears the burqa and niqab without any coercion from her family or husband. In fact she emphasised that her religion, culture and personal convictions were her reasons for wearing it. Her wearing of the niqab was not absolute but merely an item of clothing she might wear in private or public, according to her wishes. She accepted that for security purposes she may have to unveil herself for necessary identity checks.

When the law was introduced in 2010, she was thurst into a "catch 22" situation. If she continued to wear the niqab or burqa she would face a fine in line with Article 225-4-10 of the Criminal Code. Alternatively, if she didn't she was unable to express her culture and personal beliefs.

Domestic legislation

The legislative history surrounding this prohibition is complex. It began with the establishment of a parliamentary commission in 2009, comprised of members from various parties, tasked with drafting a report on the wearing of "the full face veil" in public. Briefly put, its conclusions were that the practice was at odds with the "values of the Republic", particularly because of the belief that it symbolises gender inequality and female subordination. Importantly there was no unanimous support.

The following year the National Advisory Commission on Human Rights was also seized of the matter, concluding that there was a risk of stigmatising Muslims and the potential detriment this ban would pose to women forced to wear the veil, therefore essentially barring them from public life. Equally the Conseil d' État recommended in January 2010 that the ban was "legally weak and difficult to apply in practice".

In spite of this the National Assembly unanimously passed a Resolution recommending the ban, the draft law being deposited in May 2010. Other options were simply ineffective, said the government. The law was brought into force from April 2011, sections 1 to 3 being the relevant provisions.

The Presidents of the National Assembly and Senate nevertheless referred the matter of the ban to the Constitutional Council, the latter declaring the law compliant with the Constitution, subject to the reservation that it excessively contravened Article 10 of the French Declaration 1789 on restricting the exercise of religious freedom in places of worship open to the public.

Circulars followed, issued by the Prime Minister, applying the ban to metropolitan France and its overseas administrative areas. It also clarified the law. See paragraph 31.

In December 2011 the Court of Cassation heard an appeal against a judgment of the Community Court of Paris, whereby a woman had been ordered to follow a two-week citizenship course for wearing the full-face veil as a protest against the law outside the Elsée Palace.

The appeal court held that the Law protected public order and safety.

The Opinion

In reaching their decision, the European Court paid much attention to international and domestic legal instruments, particularly those of the Council of Europe and its constituent bodies. It is particularly interesting to note the departure of the Court from the viewpoints and decision-making of the Commissioners for Human Rights of the Council and Resolution 1743 (2010) and Recommendation 1927 (2010), where serious concern as to an absolute ban was voiced.

Preliminary Objections:

The first point of discussion for the judges was whether the applicant was a "victim". The Court recognised that this question was intimately tied with the status of the applicant under Article 9. There was the need to prove on the facts a nexus between the act motivated by religion (of wearing a niqab or burqa) and the underlying belief, in order to satisfy the principle of "manifestation" determined in Eweida and Others v the UK, [2013] IRLR 231.

In the case in question it was held that she did not have to prove she was a practising Muslim, nor that it was a requirement of her faith to wear the full-face veil. It is an established practice for Muslim women, even if only the minority, to wear such garments. She was able to claim the law breached her rights in the absence of a specific instance of enforcement against her, thus being a "victim" within the meaning of Article 34. The Government's objection in this respect was dismissed.

As to the exhaustion of domestic remedies, the Court stressed that any applicant can claim victim status in the absence of any individual measure. With regard to the Government's contention that the case marked "an improper exercise of the right to individual application", the Court stated that the application did not fall within any of the four situations, including knowingly basing an application on untrue facts to deem it inadmissible. This objection was dismissed.

Articles 3 and 11:

In the substantive discussion on the law the alleged violations of Articles 3 and 11, taken separately and together with Article 14, were swiftly disposed of. On the first, the Court said that the argument that she would face harassment and discrimination, as well as criminal sanctions, amounting to degrading treatment, did not meet the minimum level of severity established in Ireland v the UK, [1978] ECHR 5310/71.

Being manifestly ill-founded, the complaint was dismissed. The same result came of the allegation that the ban deprived her of the possibility of wearing the full-face veil in public infringed Article 11. The applicant failed to indicate how the ban would breach this right, and in turn generate discrimination against her in the enjoyment of it.

Articles 8, 9 and 10:

The complaints in respect of these Articles were taken both separately and together with Article 14, and declared admissible.

As to Article 8, the Court declared that a person's choice as to their desired appearance, whether in public or private, relates to the expression of their personality within the notion of private life. The ban falls under this Article. Examination of Article 9 turned on the point of one's freedom to manifest their religion or beliefs. Emphasis was had on this provision.

Following the process laid out in the "qualifying" provision of subsection 2 to the Articles, the Court held that there was a "continuing interference", established in Dudgeon v the UK, (22 October 1981, Series A No. 45) and Norris v Ireland, (26 October 1988, Series A No. 142)with the exercising of their rights. It was unequivocally established this was prescribed by the 2010 Law. As for whether it was a legitimate aim, the Court accepted that the veil consituted a barrier to others, perceived by France to breach the principle of fraternity and the right of others to live in "a space of socialisation which makes living together easier". Concealment fell short of the minimum requirement of civility necessary for social interaction.

On the question of whether the ban was necessary in a democratic society the Court devoted much time. See paras 123-155. It recognised that domestic courts are better placed to evaluate local needs, such as ensuring groups within society tolerate each other. This margin of appreciation was complemented by a European supervision. Having regard to this, the Court declared that there would be no violation of Article 9 when clothing was to be removed for security checks or identifying photographs.

The blanket ban at the heart of this case was justifiable to the extent that it seeks to guarantee the conditions of living together. The state has the power to ensure the conditions of "living together" as an element of the protection of the rights and freedoms of others. Accordingly there was no violation of either Article read separately.

Taking Articles 8 and 9 alongside Article 14, the applicant complained of indirect discrimination. It was held that the measure's objective and reasonable justification meant there was no violation of Article 14 taken with Articles 8 and 9.

Partly Dissenting Opinion of Judges Nussberger and Jäderblom

The two judges could not share the opinion of the majority, for it sacrificed "concrete individual rights guaranteed by the Convention". The legitimate aim of "living together", requiring interpersonal exhange, was dismissed. It is not true that human interaction is impossible where the full face is not shown. Nor can concrete rights be inferred from this abstract principle. There was doubt that the French Law pursued any legitiamte aim.

On proportionality, there was a lack of clarity as to the rights the measure sought to protect. The maxim of "liberty, fraternity and equality" may in fact require acceptance of this garment and integration. The ban could be interpreted as an indication of selective pluralism and restricted tolerance.

The margin of appreciation should be narrow, not broad because of the intimate relation the subject of the ban has with one's personality. In particular, the fact that 45 member states of the Council of Europe have not instituted such a ban is an indication of European consensus. Less restrictive means should have been considered before resorting to an absolute ban. The Court is required to protect small minorities from disproportionate interferences with their rights, particularly in these circumstances, where there is a risk of further excluding those choosing to wear the niqab or burqa.

Accordingly there was a violation of Articles 8 and 9.

Decision

Unanimously dismissed the Government's preliminary objections, and declared the complaints concerning Articles 8, 9 and 10 taken sepately or together with Article 14 admissible and the remainder of the application inadmissible.

Held by 15 to 2 that there was no violation of either Articles 8 or 9.

Held unanimously that there was no violation of Article 14 taken together with Article 8 or 9, and that no separate issues arose under Article 10 taken separately or together with Article 14.

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