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S.A.S. v. France (Eur. Ct. H.R.)
Published online by Cambridge University Press: 20 January 2017
Extract
On July 1, 2014, the Grand Chamber of the European Court of Human Rights (the Court or the Grand Chamber) delivered its judgment in the case of S.A.S. v. France pertaining to the legality of the French ban on wearing full-face veils in public, introduced by Law No. 2010-1192 of October 11, 2010. The decision comes on the heels of a number of related judgments in adjacent areas of dispute circumscribing the right to privacy and religion and delimiting the circumstances that may justify interference with such fundamental human rights. In the present case, the Court for the first time had to deal with a general ban on certain clothing that arguably, for those most affected, epitomizes the manifestation of their religion. Accepting the principle of “living together (le ‘vivre ensemble’)” as an inherent element of the “rights and freedoms of others” in the French context and conceding a wide margin of appreciation to the respondent state in preserving that principle, the Court found no violation of the applicant’s rights to respect for her private life (Article 8) and to freedom of religion (Article 9) under the European Convention on Human Rights (the Convention).
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- Copyright © American Society of International Law 2014
References
* This text was reproduced and reformatted from the text available at the European Court of Human Rights website (visited November 17, 2014), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-145466.
* This text was reproduced and reformatted from the text available at the European Court of Human Rights website (visited November 17, 2014), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-141899.
1 S.A.S. v. France, App. No. 43835/11, Grand Chamber Judgment, Eur. Ct. H.R. (2014), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-145466.
2 Loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public [Law No 2010-1192 of 11 October 2010 prohibiting the concealing of the face in public], Official Journal, Oct. 12, 2010, at 18344.
3 Previously, the Court had for example concluded in favor of restricting religious attire for school teachers and students. Cf. Dahlab v. Switzerland, App. No. 42393/98, 2001-V Eur. Ct. H.R. 447, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-22643 (discussing a measure prohibiting the applicant, a school teacher, from wearing Islamic headscarf while teaching as “necessary in a democratic society”); Leyla Sahin v. Turkey, App. No. 44774/98, 2005-XI Eur. Ct. H.R. 173, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-70956 (refusing the applicant, a student, access to lectures at university for wearing Islamic headscarf pursued the legitimate aims of protecting the rights and freedoms of others, maintaining public order, and preserving the secular character of educational institutions). But the Court disallowed restrictions when they have been applied disproportionately. Cf. Eweida et al. v. United Kingdom, App. Nos. 48420/10, 59842/10, 51671/10, & 36516/10, Eur. Ct. H.R. (2013), available at http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-115881 (finding, inter alia, restrictions imposed by an airline on employees on the possibility for them to wear a modest cross around neck to be a violation of Article 9, ECHR); Ahmed Arslan et al. v. Turkey, App. No. 41135/98, Eur. Ct. H.R. (2010), available at http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-3042105-3359681 (finding that a ban on wearing certain religious clothing in public places in order to maintain public safety, and to protect public order and the rights and freedoms of others violated Article 9, ECHR, as the necessity of those measures in light of those aims could not be established).
4 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950 Google Scholar, 213 U.N.T.S. 222, available at http://www.echr.coe.int/Documents/Convention_ENG.pdf.
5 According to a French parliamentary commission tasked with reporting on “the wearing of the full-face veil on national territory,” prior to the year 2000, almost no women wore it. By the end of 2009, about 1,900 women would manifest their faith in this way, and 9 out of 10 were under 40 years old. S.A.S. v. France, supra note 1, ¶¶ 15–16.
6 Id. ¶ 40. In Spain, however, the Supreme Court quashed the judgment of a lower court that had sought to authorize bylaws limiting or prohibiting access to municipal areas used for public services for persons wearing full-face veils and other forms of clothing hindering identification. The Spanish Supreme Court took the view that “it could not be said that ‘legitimate aims’ were constituted by the protection of ‘public tranquillity’, ‘public safety’ or ‘public order’, since it had not been shown that the wearing of the full-face veil was detrimental to those interests.” Id. ¶¶ 45–47.
7 Id. ¶¶ 41–42.
8 Historically, “truce of God” referred to the suspension of hostilities between warring parties during part of the week and holy seasons. This measure by the Roman Catholic Church was first instituted in France as early as 1027. Here, the term is employed to denote a process where competing political parties temporarily set party politics aside in order to agree upon a unified stance in a matter of common interest.
9 S.A.S. v. France, supra note 1, ¶ 17.
10 Id. ¶ 18.
11 Id. ¶ 22. The Conseil d’État was in particular concerned that a ban restricted to the wearing of the full veil, instead of being formulated in more general terms, might be difficult to apply in practice and legally weak in view of the rights and freedoms guaranteed by the French Constitution, the Convention, and European Union law.
12 Id. ¶ 23.
13 Id. ¶ 24.
14 Id. ¶ 25.
15 Id. ¶ 28.
16 Id. ¶¶ 76–78.
17 Id. ¶¶ 81–83.
18 Id. ¶ 110. The Court here found a dilemma comparable to the one identified in its previous case-law, in particular in Dudgeon v. United Kingdom, App. No. 7525/76, Eur. Ct. H.R. (1981), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57473; and Norris v. Ireland, App. No. 10581/83, Eur. Ct. H.R.(1988),available at http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-57547.
19 S.A.S. v. France, supra note 1, ¶¶ 115–121.
20 Id. ¶ 139.
21 Id. ¶¶ 141–142.
22 The drafting history leaves no doubt that the main motivation behind the legal initiative was to ban wearing religious full-face veils such as the burqa and niqab in public.
23 S.A.S. v. France, supra note 1, ¶ 22.
24 Id. ¶ 149.
25 Id. ¶ 129.
26 Indeed, the Court made special mention of the “flexibility of the notion of ‘living together’ and the resulting risk of abuse,” which obligated it to “engage in a careful examination of the necessity of the impugned limitation.” Id. ¶ 122.
27 The Federalist No. 51 (James, Madison) (Feb. 6, 1788)Google Scholar.
28 S.A.S. v. France supra note 1 (joint partly dissenting opinion of Judges Nussberger and Jäderblom).