SAS v. France: Ban on covering face in public not a violation of ECHR

In SAS v France [2014] ECHR No. 43835/11 the Grand Chamber of the ECtHR has held by a majority [Nussberger and Jäderblom JJ dissenting] that the French law prohibiting the concealment of one’s face in public places (Law no. 2010-1192 of 11 October 2010) does not violate Article 8 (respect for private and family life) or Article 9 (freedom of thought, conscience and religion) of the Convention and, unanimously, that there had been no violation of Article 14 ECHR (prohibition of discrimination) combined with Articles 8 or 9. The Court further declared inadmissible the applicant’s complaints under Articles 3 (inhuman or degrading treatment) and 11 (assembly and association), taken separately  and together with Article 14.

SAS v France was about  the complaint of a Frenchwoman, a practising Muslim, that she was no longer allowed to wear the full-face veil in public following the entry into force on 11 April 2011 of Law no. 2010-1192. She told the Court that she wore the burqa and niqab in accordance with her religious faith, culture and personal convictions. She stressed that neither her husband nor any other member of her family had put pressure on her to wear a veil. She was content not to wear the niqab in certain circumstances but wished to be able to wear it when she chose to do so. Her aim was not to annoy others but to feel at inner peace with herself.

The Government argued that she was not a “victim”, that she had failed to exhaust domestic remedies and that her claim was “an improper exercise of the right of individual application”, which it described as containing “a totally disembodied argument, lodged on the very day the prohibition on concealing the face in public came into force by an applicant who ha[d] not been the subject of domestic proceedings and of whom nothing [was] known, except what she [had] seen fit to say about her religious opinions and about her uncertain way of expressing them in her behaviour” [para 62]. The GC dismissed the Government’s objections on admissibility.

As to the complaints under Articles 8 and 9 (which were the guts of her complaint), there had been an interference or limitation of the exercise of the applicant’s rights protected by Articles 8 and 9 of the Convention [para 110] and that limitation or interference was “prescribed by law”; nor did the applicant dispute that the provisions satisfied the criteria laid down in the Court’s case-law on Article 8 § 2 and Article 9 § 2 [para 112].

The enumeration of the exceptions to the individual’s freedom to manifest his or her religion or beliefs was exhaustive and the definition restrictive. A limitation of this freedom must, in particular, pursue an aim that could be linked to one of those listed in this provision. The same approach applied in respect of Article 8 [para 113]. “Public safety” was one of the aims enumerated in the second paragraph of Article 9; and the Court noted the Government’s observation that the ban was necessary for the safety of persons and property and to combat identity fraud [para 115].

The Government referred to three values [para 116]: respect for equality between men and women, respect for human dignity and respect for the minimum requirements of life in society. It submitted that they could be linked to the “protection of the rights and freedoms of others” within the meaning of Articles 8(2) and 9(2). The Court was not convinced by the Government’s arguments about equality between men and women [para 118] and human dignity [para 120]. However

“… the Court finds, by contrast, that under certain conditions the ‘respect for the minimum requirements of life in society’ referred to by the Government – or of ‘living together’, as stated in the explanatory memorandum accompanying the Bill (see paragraph 25 above) – can be linked to the legitimate aim of the ‘protection of the rights and freedoms of others’ “ [para 121].

Respect for the conditions of “living together” was a legitimate aim for the measure at issue, particularly as France had a wide margin of appreciation on the general policy question – about which there were significant differences of opinion. The restriction could be regarded as proportionate to the aim pursued: the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others” [para 157]. The impugned limitation could therefore be regarded as “necessary in a democratic society” [para 158]. The ban imposed by the Law of 11 October 2010 did not, therefore, breach either Article 8 or Article 9.

Dissenting, Nussberger and Jäderblom JJ took the view that criminalising the full-face veil was disproportionate to the aim of protecting the idea of “living together”. That aim could not in any case be readily reconciled with the Convention’s restrictive catalogue of grounds for interference with basic human rights – and there had therefore been a violation of Articles 8 and 9.