Rejecting claims that it violated (1) Article 8 of the European Convention on Human Rights
, which sets out the
right to respect for private and family life, or (2) Article 9, which
concerns freedom of thought, conscience and religion, or (3) Article 14, which prohibits discrimination, the European Court of Human Rights, buy its Grand Chamber, held that French law banning full face covering in public did not violate the provisions of the European Convention of Human Rights. (Press Release issued by the Registrar of the Court, ECHR 191 (2014) 01.07.2014: French Ban on the Wearing in Public of Clothing designed to Conceal One's Face Does not Breach the Convention
A case was brought by a 24-year-old French woman, who argued that the ban on wearing the veil in public violated her freedom of religion and expression. French law says nobody can wear in a public space clothing intended to conceal the face. The penalty for doing so can be a 150-euro fine (£120; $205). The 2010 law came in under former conservative President Nicolas Sarkozy. A breach of the ban can also mean a wearer having to undergo citizenship instruction. (European Court upholds French full veil ban
, BBC News Online, July 1, 2014).
The case is most interesting because of its emphasis on the political importance, now raised to a trans-constitutional principle, that political solidarity--and the construction of a harmonious society--are substantially important enough to warrant some impairment of individual or personal rights, including rights grounded in religious custom. "The Court emphasized that respect for the conditions of 'living together' was a legitimate aim for the measure at issue and that, particularly as the State had a lot of room for manoeuvre ('a wide margin of appreciation) as regards this general policy question on which there were significant differences of opinion, the ban imposed by the Law of 11 October 2010 did not breach the Convention." (French Ban on the Wearing in Public of Clothing designed to Conceal One's Face Does not Breach the Convention
). For a critique of the solidarity principle as a basis for managing individual human rights, see Dabniel Augenstein, "Normative
fault-lines of trans-national human rights jurisprudence: National
pride and religious prejudice in the European legal space," Global Constitutionalism
2(3):469-497 (2013) doi:10.1017/S2045381713000154 (suggesting that
the diversity of national-majoritarian approaches to social cohesion in
Europe prevents the Court from ensuring an effective trans-national
protection of religious pluralism). On the importance of "margins of appreciation", e.g., Larry Catá Backer, “Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S
.,” 7 Tulsa Comparative & International Law Journal
Note also the important role of the application of the principle of proportionality in the decision. (e.g., Jeremy McBride, "Proportionality and the European Convention on Human Rights, in The Principle of Proportionality in the Laws of Europe
(Evelyn Ellis, ed., 1999)). Yet one of the "penalties", attending classes on citizenship, is potentially substantially transformative in the way it appears to give the state broad powers of socialization of its citizens, even where the objectives of socialization may run counter to the deeply held values of minority communities into which these are projected. Yet group solidarity is an ancient basis for political union and for the cohesion of the state. The extent to which the State may then protect its own "group feeling" (an ancient concept even within the dar al Islam, Abd Ar Rahman bin Muhammed ibn Khaldun
, The Muqaddimah
(Franz Rosenthal, trans., Princeton University Press, 1967)) may play an increasingly larger role in the jurisprudence of the ECHR. Also interesting was the Court's fairly narrow reading of the justification of public safety as a predicate for impairing individual rights.
The opinion may be accessed HERE
(ENGLISH) and ICI
(FRANÇAIS) and both are included below.
The extended Press Release in English and French or may be accessed here:
ENGLISH: Click here
to download it.
FRANÇAIS: Cliquez ici
pour le télécharger.