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Case Summary of S.A.S. v. France  ECHR 695
The case concerned the rights of individuals to manifest their freedom of religion1 and private life,2 a matter which has been the subject of much jurisprudence.3 However, SAS v France4 was somewhat different because it considered a blanket ban on covering the face, rather than the right to wear particular articles of clothing or religious symbols, which have characterised earlier cases.5
French Law 2010-1192,6 rendered it unlawful for any person to conceal their face in public.7 The applicant, a Muslim French national,8 challenged the blanket ban9 on the basis that it infringed her rights under Articles 3, 8, 9, 10, 11 and 14 of the ECHR.10 She asserted that she was not coerced into wearing the burqa11 and that, although she did not do so ‘systematically’,12 her rights under the Convention afforded her the protection to wear them as she chose, albeit accepting the requirement to show her face for security checks.13
The court dismissed the applicant’s claims under Articles 3, 10 and 11 without considering it necessary to examine any potential legal issues in this regard.14 As such, consideration of these issues is not required here.
The court instead considered the issues under Articles 8, 9 and 14,15 particularly in terms of the right to freedom of religion or belief under Article 9 and the applicant’s right to cover her face in public pursuant to the right to private life under Article 8.16 The issues for the court were firstly, whether the blanket ban was a prima facie breach of these rights, and if so, whether any such breach could be justified in relation to legitimate policy aims17 of promoting respect for the minimum set of values in a democratic society,18 and public safety.
The court held that the ban triggered both Articles. In terms of Article 8, the non-coerced desire to cover the face was an expression of the applicant’s personality, and thus fell under the umbrella of private life. Article 9 was invoked by the fact that the choice to wear the clothing constituted a manifestation of religion although the court was careful to distinguish 19between covering the face as an expression of religion, rather than the issue being the right to wear particular clothing.20
Although it was clear that public safety did fall under the permitted derogations and was therefore a legitimate aim, respect for the minimum set of values of an open and democratic society did not fall under the permitted derogations21 from Articles 8 and 9, as contained in Articles 8(2) and 9(2) respectively. However, it held that such a justification did fall under the legitimate aim of protecting the rights and freedoms of others22 although this could not include promoting gender equality23 as the practice of covering the face was ‘defended’24 by women, as an empowering, rather than coercive, practice.
Similarly, the court dismissed the State’s argument that the ban could be justified in terms of public safety, as there was nothing to suggest that any general threat to the public was caused by covering the face.25 However, the court recognised that the interference with Articles 8 and 9 could still be justified under the need to protect the rights and freedoms of others due to the fact that social interaction could be viewed as important in a democratic society where people were ‘living together’26 and covering the face could interfere with this.27 The ban was not disproportionate because the criminal sanctions attached to disregarding the ban were minimal.28
Impact on the Topic
Although the outcome of the case may be considered as defeating the rights of Muslim women in France to express their religion, there are aspects of the decision which ought to be celebrated as furthering the protection of human rights.29 This is clear from the fact that the court’s reasoning is in stark contrast to the earlier decision of Dahlab v Switzerland30, in which it was held that the hijab ‘appears to be imposed on women by a precept which is laid down in the Koran’.31 In this respect therefore, SAS is to be welcomed as it represents the court moving away from earlier jurisprudence, which appears rife with assumptions about Islam in a general sense, rather than representing protection of the expression of individual freedoms.32 It is clear that this was an important part of the court’s reasoning in SAS in which it observed that the covering of the body is a matter which is inherently subject to ‘variability’33 of views, and that this pluralism is essential in a democratic society.34 This reasoning may not, however, be considered altogether ground-breaking, as it is clear from Judge Tulkens’ dissenting opinion in Leyla Sahin v Turkey35 that decisions such as Dahlab were evidence of a condemnable judicial tendency to ‘determine in a general and abstract way the signification of wearing the headscarf to impose its viewpoint on the applicant’.36 However, it remains to be seen whether further case law will follow SAS or return to Dahlab, which of course referred to the right to wear specific clothing37 as opposed to the blanket ban in SAS.
Of course, the decision did ultimately render the ban lawful,38 and in the sense that it accepted that the State’s right to promote the concept of living together was justifiable, is problematic on the basis that the court provided almost no analysis of what such a concept entails.39 Further, even if one accepts this somewhat ‘vague’40 argument, the concept appears to presuppose that living together requires individuals to display their faces in public. The court provided little of evidence of this being necessary, beyond recognising that this may be the opinion of the majority of people in France.41 This may indeed be true; however, the court had previously recognised that the fact that the ban would only affect a small number of women was irrelevant in terms of assessing whether it was proportionate.42 Therefore, even without considering the human rights implications, this appears rather contradictory. Indeed, the court itself noted that ‘broadmindedness’43 constitutes an important element of living together.44 It is difficult to accept that, in effect, allowing a majority view to dictate policy is anything other than the antithesis of broadmindedness.
Therefore, despite the fact that the departure from Dahlab is certainly to be welcomed, the reasoning of the court in terms of the justification for the ban was poor and created the undesirable position that the door for States wishing to impose blanket bans based on vague policy aims in line with majority views, rather than protection of individual rights, has been left open.
1 Article 9 European Convention on Human Rights 1950 (ECHR).
2 Article 8 ECHR.
3 A Steinbach, ‘Burqas and Bans: The Wearing of Religious Symbols Under The European Convention on Human Rights’ (2015) CJICL 4(1) 29-52, 30.
4 SAS v France 2014 ECHR 695.
5 E Howard, Law and the Wearing of Religious Symbols (Routledge 2012) Chapter 3.
6 French Law 2010-1192.
7 SAS v France (n4) at 14
8 ibid at 10.
9 ibid at 11.
10 ibid at 69–74.
11 ibid at 11.
12 ibid at 12.
13 ibid at 13.
14 ibid at 69–73.
15 ibid at 106–159.
16 ibid .
17 ibid at 110–111.
18 ibid at 114.
19 ibid at 115 and 151.
20 ibid at 37.
21 ibid at 117.
22 ibid at 116 and 157.
23 ibid at 119.
24 S Berry, ‘SAS v France: Does Anything Remain of the Right to Manifest Religion?’ (2014) EJIL Analysis available at here accessed 30/10/2015.
25 SAS v France (n4) at 139.
26 ibid at 121.
27 ibid at 122.
28 ibid at H9.
29 FX Millet, ‘Case Comment: When the European Court of Human Rights Encounters the Face: A Case Note on the Burqa Ban in France’ (2015) ECL Review 11(2) 408-424, 416.
30 Dahlab v Switzerland 2001 ECHR 15.
31 ibid np available.
32 Millet (n29) 416.
33 SAS v France (n4) at 120.
34 ibid at 124.
35 Leyla Sahin v Turkey 2012 54 EHRR 20.
36 Separate Dissenting Opinion of Judge Tulkens in Sahin v Turkey (n35) at 12 available at here accessed 30/10/2015.
37 Dahlab (n30).
38 SAS v France (n4) at H2.
39 S Laegaard, ‘Burqa Ban, Freedom of Religion and Living Together’ (2015) Human Rights Rev 15 203-219, 207.
40 ibid at 206.
41 SAS v France (n4) at 119–128.
42 ibid at 78.
43 ibid at 128.
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