S.A.S. v. France [2014] ECHR 695

Case Summary of S.A.S. v. France [2014] ECHR 695

Introduction

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

Facts

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

Legal Issues

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 Outcome

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.

Footnotes

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.

⁴⁴ Ibid.