Justice Minister Francisco Caamaño said on Tuesday that the Future Religious Freedom Law will restrict the use of the burqa in public areas, following the lead of several Catalonian cities that recently banned full-body coverings.
"There are elements such as the burqa that are hardly compatible with human dignity and, above all, with fundamental issues in public spaces such as the identification of individuals," said Caamaño.
The burqa and niqab are usedby very few Muslim women in Spain, unlike the headscarf or hijab. On Monday, Barcelona decreed a ban on on the burqa affecting all public buildings. Socialist Mayor Jordi Hereu defended the measure "for security reasons" and "out of common sense." Tarragona and Lleida recently enacted similar bans.
The applicants are 127 Turkish nationals, including Mr Ahmet Arslan. They belong to a religious group known to its members as Aczimendi tarikatÿ.
In October 1996 they met in Ankara for a religious ceremony held at the Kocatepe mosque. They toured the streets of the city while wearing the distinctive dress of their group, which evoked that of the leading prophets and was made up of a turban, “salvar” (baggy “harem” trousers), a tunic and a stick. Following various incidents on the same day, they were arrested and placed in police custody.
In the context of proceedings brought against them for breach of the anti-terrorism legislation, they appeared before the State Security Court in January 1997, dressed in accordance with their group’s dress code.
Following that hearing, proceedings were brought against them and they were convicted for a breach both of the law on the wearing of headgear and of the rules on the wearing of certain garments, specifically religious garments, in public other than for religious ceremonies. They appealed against their conviction, but without success. In addition, their application to the Ministry of Justice, seeking leave to lodge a reference by written order was also dismissed.
Article 9 – Freedom of thought, conscience and religion1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
The applicants’ conviction for having worn the clothing in question fell within the ambit of Article 9 – which protected, among other things, the freedom to manifest one’s religious beliefs – since the applicants were members of a religious group and considered that their religion required them to dress in that manner. Accordingly, the Turkish courts’ decisions had amounted to interference in the applicants’ freedom of conscience and religion, the legal basis for which was not contested (the law on the wearing of headgear and regulations on the wearing of certain garments in public).
It could be accepted, particularly given the importance of the principle of secularism for the democratic system in Turkey, that this interference pursued the legitimate aims of protection of public safety, prevention of disorder and protection of the rights and freedoms of others. However, the sole reasoning given by the Turkish courts had consisted in a reference to the legal provisions and, on appeal, a finding that the disputed conviction was in conformity with the law.
The Court further emphasised that this case concerned punishment for the wearing of particular dress in public areas that were open to all, and not, as in other cases that it had had to judge, regulation of the wearing of religious symbols in public establishments, where religious neutrality might take precedence over the right to manifest one’s religion.
There was no evidence that the applicants represented a threat for public order or that they had been involved in proselytism by exerting inappropriate pressure on passers-by during their gathering. In the opinion of the Religious Affairs Organisation, their movement was limited in size and amounted to “a curiosity”, and the clothing worn by them did not represent any religious power or authority that was recognised by the State.
The court observed that the purpose of the restriction on the applicants' right to manifest their religious convictions was to adhere to the requirements of secularism in French state schools.
The court also said that the penalty of expulsion did not appear disproportionate, and noted that the applicants had been able to continue their schooling by correspondence classes.
"It was clear that the applicants' religious convictions were fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order," the court said in a press release.
It was also clear that the decision was based on those requirements and not on any objections to the applicants' religious beliefs.