The European Court of Human Rights (ECHR) has opened a landmark hearing to consider the legality of France's ban on wearing Islamic veils in public spaces.
The Strasbourg-based ECHR enforces the European Convention on Human Rights and its jurisdiction is compulsory and binding for all 47 member states of the Council of Europe.
The court's ruling—expected to be issued sometime during the middle of 2014—will determine the fate of the debate over so-called burqa bans (here, here, here, here and here) that have been raging across Europe for many years.
This is the first time the supra-national ECHR has agreed to consider the legality of the face-covering niqab or the body-covering burqa in public spaces in a European country.
 The European Court of Human Rights in Strasbourg, France. The ECHR is considering the legality of France's restrictions on wearing the Islamic veil in public. (Image source: CherryX/WikiMedia Commons) |
The court has deemed the case so important that it has taken the unusual step of referring it to the Grand Chamber, the court's highest chamber that handles the most significant and leading-edge questions affecting the interpretation and application of the European Convention on Human Rights.
The court began hearing the case—which is being brought by a 23-year-old French Muslim woman identified only by her initials S.A.S.—on November 27.
According to a summary of the case published by the court, S.A.S. sued the French State on April 11, 2011, when legislation banning people from covering their faces in public places came into force. The document states:
"In the applicant's submission, she is a devout Muslim and she wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. As she has explained, the burqa is a full-body covering including a mesh over the face, and the niqab is a full-face veil leaving an opening only for the eyes. The applicant also emphasizes that neither her husband nor any other member of her family puts pressure on her to dress in this manner. She adds that she wears the niqab in public and in private, but not systematically. She is thus content not to wear the niqab in certain circumstances but wishes to be able to wear it when she chooses to do so. Lastly, her aim is not to annoy others but to feel at inner peace with herself."
S.A.S. argued that the French law violates six articles of the European Convention on Human Rights. These are: Article 3 (no one shall be subjected to inhuman or degrading treatment); Article 8 (right to respect for private and family life); Article 9 (freedom of thought, conscience and religion); Article 10 (freedom of expression); Article 11 (freedom of assembly and association); and Article 14 (prohibition of discrimination).
France's "burqa ban" entered into force on April 11, 2011. The law—which prohibits the wearing of Islamic body-covering burqas and face-covering niqabs in all public spaces in France—was enacted amid rising frustration that the country's estimated 6.5 million Muslims are not integrating into French society.
With certain exceptions, anyone in France covering their face on the street and in parks, on public transportation, in public institutions such as train stations and town halls, and in shops, restaurants and movie theaters, will be subject to a fine of €150 ($210). Exceptions to the ban include the covering of one's face with a motorcycle helmet, sunglasses, a bandage, a welding mask, a fencing mask or a fancy dress mask.
More severe penalties are in store for those found guilty of forcing others to cover their faces by means of "threats, violence and constraint, abuse of authority or power for reason of their gender." Clearly aimed at Muslim fathers, husbands or religious leaders, anyone found guilty of forcing a woman to wear an Islamic veil against her will is subject to a fine of €30,000 ($40,500) and one year in jail, or €60,000 ($81,500) and up to two years in jail if the case involves a minor.
The ban does not apply in private homes, hotel rooms and office buildings, except for elevators, conference rooms and lobbies and/or other spaces open to the public. The law also defines the inside of an automobile as a private space exempt from the measure.
Polls show that French citizens back the burqa ban by a very wide margin. A survey conducted by French pollster BVA and published in the daily Le Parisien on March 25, 2013 found that 86% of French people back introducing legislation that would ban "all signs of religious or political affiliation" in private schools and nurseries. According to the same poll, 83% support imposing a law making it illegal in all privately-owned businesses.
Around 300 women have been issued fines since the face-veil ban took effect. However, recent attempts to enforce the ban in Paris have resulted in rioting and violence against the police. In July 2013, hundreds of Muslims went on a rampage in Trappes, a suburb of Paris, after police checked the identity of a Muslim woman who was illegally wearing a full-face Islamic veil in public.
In the southern French city of Marseille, a Muslim mob attacked police in July 2012 after the officers ordered an 18-year-old woman Muslim woman who was wearing a niqab to show her identity card. The woman refused, saying, "I don't obey the laws of the French Republic."
At the ECHR's hearing in Strasbourg on November 27, a lawyer for the French government, Edwige Belliard, advanced four arguments to defend the burqa ban: 1) it is the result of a long democratic debate; 2) the prohibition against concealing the face is an imperative of public policy, a minimum requirement of life in a democratic society; 3) the public space is a place in society where a person must be able to connect with others; and 4) burqas and niqabs deny women their dignity and identity.
Belliard called on the European judges "not to fall into the trap set by SAS's lawyers: it is not an anti-religious law; its aim is simply to promote harmony in society." She added that the burqa and the niqab are "an obstacle to social life in a democratic, open and egalitarian society."
"Wearing the full veil not only makes it difficult to identify a person, it makes her indistinguishable from other full veil wearers and effectively erases the woman who wears it," she told the court.
In a letter to the court, Annie Sugier, the head of the International League for Women's Rights, a leading French feminist group, urged the ECHR to uphold the ban, arguing that it is "in no way contrary to freedom and dignity, but is in fact a law of liberation and of civil concord." The law also liberates women because the wearing of veils is "totally incompatible with the very idea of equality."
"The full-face veil, by literally burying the body and the face, constitutes a true deletion of the woman as an individual in public," Sugier argued. "How can one not see that to wear the full veil is also a symbolic violence to other women?" she added. "Those who do not wear it feel insulted by this sight reminding them of the enclosures suffered in the past."
Sugier asks: "Can one still speak of dignity when a human being, having consented or not, finds herself reduced to a mere shadow in the street, an object and no longer a person able to exchange with fellow human beings?"
But Ramby de Mello, the British lawyer representing SAS, said the law violated his client's rights to freedom of religion, free speech and privacy and made her feel "like a prisoner in her own country." The veil is "as much part of her identity as our DNA is of ours," he argued.
In a separate case, an appeals court in Paris on November 27 upheld the dismissal of a Muslim nursery worker who was fired for wearing an Islamic headscarf to work, in violation of an internal dress code banning religious garments.
The decision overturned a lower court's ruling that the Baby Loup daycare center, situated in the Parisian suburb of Chanteloup-les-Vignes, was guilty of religious discrimination when it sacked Fatima Afif in December 2008.
The appeals court ruled that the daycare center, which takes care of infants from 55 different nationalities, had a right "to impose neutrality on its personnel."
The lawyer defending Baby-Loup, Richard Malka, welcomed the ruling because it "reaffirms the strength of the principle of secularism."
But the Collective Against Islamophobia in France (CCIF), a Muslim rights group, denounced the ruling as "a veritable judicial scandal" that meant "nobody is protected against being judged by one's religious, ethnic or social origin."
Soeren Kern is a Senior Fellow at the New York-based Gatestone Institute. He is also Senior Fellow for European Politics at the Madrid-based Grupo de Estudios Estratégicos / Strategic Studies Group. Follow him on Facebook. Follow him on Twitter.
Mark Matthias