Face veil bans in the European Court of Human Rights: the importance of empirical findings

Abstract

First, this Article will set out the facts and context of face veil bans in Europe and the legal challenges surrounding them. Then, the Article will explain the legal criteria that will be used by the European Court of Human Rights when deciding on this issue. Next, in its central argument, this Article will discuss the possible outcome of S.A.S. v. France, by assessing whether the arguments advanced by European governments to ban face veils can pass the human rights test instituted by the court. This assessment will rely on the court’s case law, as well as on the case file of the case currently pending before it. It will also include the results of empirical research conducted among women wearing face veils in Europe and analyze whether the government’s claims are consistent with those empirical studies.

Full text

517
FACE VEIL BANS IN THE EUROPEAN COURT
OF HUMAN RIGHTS: THE IMPORTANCE OF
EMPIRICAL FINDINGS
Eva Brems

INTRODUCTION
European societies’ recent struggle with the integration of
their Muslim minorities has resulted in many challenging legal
debates, particularly with regard to the accommodation of
religion in the workplace and in educational settings. Recently,
such debates have extended to the proper role of religious
expression in the public space. The most widespread example of
this new phenomenon is the criminalization of the wearing of the
niqab, or Islamic face veil, in public.
One of the most remarkable aspects pertaining to the
European bans on face coverings and the surrounding debates is
that they proceed on the basis of assumptions about women
wearing face veils without any factual support. At the time the
bans in Belgium and France were adopted, there was no empirical
research available that documented the experiences and motives
of the women who wore face veils. Nor was there any effort
undertaken to consult those women in the process leading up to
the ban.
One such example is the report by the Parliamentary
Commission of Inquiry in France before the ban on face veils was
adopted.
1
The Commission of Inquiry consisted of 32 members
* Eva Brems is a Professor of Human Rights Law at Ghent University,
Belgium, and was a member of the Belgian Federal Parliament (June 2010–
May 2014). The research for this paper was possible thanks to the European
Research Council (Starting Grant).
1
A. GÉRIN, ASSEMBLÉE NATIONALE N° 2262, RAPPORT D’INFORMATION
FAIT EN APPLICATION DE L’ARTICLE 145 DU RÈGLEMENT AU NOM DE LA
MISSION D’INFORMATION SUR LA PRATIQUE DU PORT DU VOILE INTÉGRAL SUR

518
JOURNAL OF LAW AND POLICY
representing all parliamentary groups. It heard about 200
witnesses and experts and sent out questionnaires to several
French Embassies. After six months, it produced a 658-page
report.
2
However, the commission had not planned to hear a
single woman who actually wore a face veil.
3
The only person
whom they did interview who wore a face veil, Kenza Drider,
was only heard upon her own request. In the Belgian parliament,
a large majority of legislators rejected a request for expert
hearings as well as a referral of the bill for advice to the Council
of State,
4
the state body that controls amongst others the
conformity of proposed new legislation with higher law, such as
constitutional and European human rights provisions. Today,
however, such qualitative research on the experiences of women
who wear the face veil exists. Specifically it has been conducted
in France and Belgium, as well as in the Netherlands,
5
the United
Kingdom,
6
and Denmark.
7
It is worth noting that the findings of
these studies are very similar. While the data on which this paper
relies are mostly from my own study in Belgium,
8
it needs to be
LE TERRITOIRE NATIONAL (2010).
2
Id.
3
Id.
4
See
Parliament of Belgium, Commission Report 53/219 Nr 4, Sess.
2010–11.
5
See
ANNELIES MOORS, AMSTERDAM SCH. FOR SOC. SCI.,
GEZICHTSSLUIERS: DRAAGSTERS EN DEBATTEN (2009),
available at
http://www.manavzw.be/_files/niqaabrapport%2010%20juli%202009%20-
%20Annelies%20Moors.pdf;
see
also
Annelies Moors, Face-Veiling in the
Netherlands: Public Debates and Women’s Narratives,
in
THE EXPERIENCES
OF FACE VEIL WEARERS (Eva Brems ed., forthcoming 2014).
6
See
Naima Bouteldja,
“France vs. England
,
”
in
THE EXPERIENCES OF
FACE VEIL WEARERS,
supra
note 5.
7
UNIV. OF COPENHAGEN, RAPPORT OM BRUGEN AF NIQAB OG BURKA
(2009),
available at
http://www.e-pages.dk/ku/322/.
See also
Kate Østergaard
et al.,
Niqabis in Denmark: When Politicians ask for a Qualitative and
Quantitative Profiling of a Very Small and Elusive Sub-Culture
,
in
THE
EXPERIENCES OF FACE VEIL WEARERS,
supra
note 5.
8
Unless mentioned otherwise, quotes from niqabis (i.e. face veil wearers)
are from EVA BREMS ET AL. HUMAN RIGHTS CENTRE
OF GHENT UNIVERSITY, WEARING THE FACE VEIL IN BELGIUM (2012)
[hereinafter BREMS ET AL., WEARING THE FACE VEIL],
available at
http://www.ugent.be/re/publiekrecht/en/research/human-

FACE VEIL BANS IN THE ECHR
519
emphasized that these findings are entirely consistent with those
of the French study.
A challenge to the French face veil ban is currently pending
before the European Court of Human Rights, the case of
S.A.S.
v. France
. This paper assesses what chance the applicant has of
succeeding. It argues that a crucial factor will be the extent to
which the European judges will be willing to base their reasoning
on empirical findings regarding face veils in Europe, rather than
on prevalent myths embraced by European audiences and
policymakers. This Article will also argue that these empirical
findings are crucial for an adequate legal analysis of the human
rights dimension involved in face veil bans.
First, this Article will set out the facts and context of face veil
bans in Europe and the legal challenges surrounding them. Then,
the Article will explain the legal criteria that will be used by the
European Court of Human Rights when deciding on this issue.
Next, in its central argument, this Article will discuss the possible
outcome of
S.A.S. v. France
, by assessing whether the arguments
advanced by European governments to ban face veils can pass the
human rights test instituted by the court. This assessment will
rely on the court’s case law, as well as on the case file of the case
currently pending before it. It will also include the results of
empirical research conducted among women wearing face veils in
Europe and analyze whether the government’s claims are
consistent with those empirical studies.
I. FACE VEIL BANS IN EUROPE AND THE HUMAN RIGHTS
CHALLENGE
Throughout (western) Europe, there is a trend to ban “face
coverings” in public spaces, which targets women who wear the
Islamic face veil.
9
This phenomenon started with municipal bans;
such bans are in place today in Belgium, the Netherlands, Italy,
rights/faceveil.pdf/at_download/file.
9
Formally, these bans apply to “face covering” in general. Yet, both the
parliamentary debates and the political discourse surrounding their adoption, as
well as the practice of their implementation, indicate that in fact these bans
target only Islamic face veils.

520
JOURNAL OF LAW AND POLICY
and Spain.
10
Nationwide bans were adopted in France in 2010
11
and in Belgium in 2011,
12
and a regional ban was voted into
10
In Belgium, the “geographical coverage” of these local prohibitions
appears to be the widest, with virtually all major cities and towns disposing of
a prohibition, which is regularly enforced (and continues to be enforced
despite the nationwide ban, presumably on account of the lighter procedure of
administrative sanctions).
See, e.g.
,
Belgium’s Lower House of Parliament
Bans Burqa-type Islamic Dress in Public
, DAILY NEWS (Apr. 30, 2010),
http://www.nydailynews.com/news/world/belgium-house-parliament-bans-
burqa-type-islamic-dress-public-article-1.169905. In the Netherlands, such
local bans are quite rare. There, as the legality and constitutionality is widely
considered controversial, they hardly seem to be enforced in practice.
See,
e.g.
, Ofrit Liviatan,
From Abortion to Islam: The Changing Function of Law
in Europe’s Cultural Debates
, 36 FORDHAM INT’L L.J. 93, 103 (2013). In
Italy, local bans can be found particularly in the north and northeast of the
country.
See, e.g.
, Evan Darwin Winet,
Face Veil Bans and Anti-Mask Laws:
State Interests and the Right to Cover the Face
, 35 HASTINGS INT’L & COMP.
L. REV. 217, 247 (2012). In Spain in 2010, a relatively small number of towns
and cities in Catalonia (including, most notably, Barcelona), started to pass
regulation banning face covering in municipal buildings.
See, e.g.
, Natalie
Orenstein,
France Hardly Alone on Burqa Ban
, NEWSDESK (July 21, 2010),
http://newsdesk.org/2010/07/21/france-hardly-alone-on-burqa-ban/.
11
Loi 2010-1192 du 11 octobre 2010 interdisant la dissimulation du
visage dans l’espace public [Law 2010-1192 of October 11, 2010 on the
Prohibition of Concealing the Face in Public Space], JOURNAL OFFICIEL DE LA
RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Oct. 12,
2010, p. 18344. Article 1 states: “No one may, in spaces open to the public,
wear a garment that has the effect of hiding the face.” Exceptions apply when
“clothing [is] prescribed or authorised by legal or regulatory provisions,”
when the clothing “is justified by reasons of health or professional motives,”
or when the clothing is “part of sports activities, festivities or artistic or
traditional manifestations.”
See id.
art. 2, § II. Sanctions consist of fines for
the wearer of up to 150 euros and/or participation in a citizenship course.
Additionally, the Act penalizes anyone who forces another “through threats,
violence, constraint, abuse of authority or power for reason of their gender” to
wear face coverings, with a fine of 30,000 euros and one year imprisonment.
Id.
art. 4. The latter penalties can be doubled if the victim is a minor.
Id.
On
October 7, 2010, the Constitutional Council upheld the constitutionality of the
ban, with only minor reservations. Conseil constitutionnel [CC] [Constitutional
Court] decision No. 210-613DC, Oct. 7, 2010 (Fr.). Most notably the Council
determined that the ban could not be enforced in places of worship.
Id.
¶ 5.
12
Loi visant à interdire le port de tout vêtement cachant totalement ou de
manière principale le visage [Prohibition on Wearing Clothing Fully or Mostly
Covering One’s Face] of June 1, 2011, MONITEUR BELGE [M.B.] [OFFICIAL

FACE VEIL BANS IN THE ECHR
521
effect by referendum in the Swiss canton of Ticino.
13
Proposals
for similar nationwide bans have been dismissed—at least
temporarily—in Denmark,
14
the Netherlands,
15
Spain,
16
the United
GAZETTE OF BELGIUM], July 13, 2011, http://www.staatsblad.be (Belg.). It
inserts an Article 563
bis
into the Belgian Criminal Code. In practical terms
and “subject to legal provisions to the contrary,” this provision punishes
persons “who appear in places accessible to the public with their faces covered
or concealed, in whole or in part, in such a manner that they are not
recognisable” with a monetary fine of fifteen to twenty-five euros (increased
with the legal surcharge factor, i.e., multiplied by 5.5) and/or a prison
sentence of one to seven days.
Id.
An exception applies when face covering is
permitted or imposed by “labour regulations or municipal ordinances due to
festivities.”
Id.
Moreover, the law continues the application of local bans
imposing administrative sanctions. In Belgium, too, the law was unsuccessfully
challenged before the Constitutional Court, which like the French
Constitutional Council, made only a minor reservation for places of worship.
Cour Constitutionelle [CC] [Constitutional Court] decision no 145/2012,
July 13, 2011, MONITEUR BELGE [M.B.] [OFFICIAL GAZETTE OF BELGIUM],
Dec. 6, 2012, http://www.grondwettelijkhof.be (Belg.).
13
The referendum in September 2013 obtained a 65.4% majority.
Gerhard Lob,
Burka Ban Approved in Italian-Speaking Switzerland
,
SWISSINFO.CH (Sept. 22, 2013), http://www.swissinfo.ch/ita/politica/
Il_Ticino_mette_al_bando_il_burqa_nella_costituzione.html?cid=36936130.
The federal parliament will have to rule on the constitutionality of the rule.
Id.
14
In 2009, the Danish Minister of the Interior set up an ad hoc committee
to study the desirability of banning face veils in public. They commissioned an
empirical study, which showed that the number of face veil wearers in
Denmark was very small, and that many were Danish converts. Subsequently,
no ban was adopted.
See
Østergaard et al.,
supra
note 7.
15
The Dutch government agreements of 2007 and 2010 announced the
introduction of a face-covering ban. Such a bill was introduced in Parliament
in early 2012. Yet, after the fall of the cabinet, the new coalition announced in
its agreement only a set of functional face-covering bans (in the context of
education, health care, and public transportation, as well as for access to
government buildings), rather than a general ban.
See
BRUGGEN SLAAN,
REGEERAKKOORD (2012),
available at
http://www.rijksoverheid.nl/bestanden/
documenten-en-publicaties/rapporten/2012/10/29/regeerakkoord/
regeerakkoord.pdf.
In July 2010, Spain’s lower chamber of parliament rejected a bill to ban
the wearing of face-covering garments in public. At the regional level, the
Catalan Parliament rejected two motions aiming to introduce a face veil ban in
public spaces presented by the Popular Party on July 1, 2010 in the Plenary,
and on April 5, 2011, in the Commission on Welfare and Immigration.
See
AMNESTY INT’L, CHOICE AND PREJUDICE: DISCRIMINATION AGAINST MUSLIMS

522
JOURNAL OF LAW AND POLICY
Kingdom,
17
and Switzerland,
18
although they remain pending in
Italy.
19
Judges have occasionally ruled that the application of a local
ban on face veils violated fundamental rights.
20
The French
IN EUROPE 98 n.282 (2012),
available at
http://www.amnesty.org/
en/library/asset/EUR01/001/2012/en/85bd6054-5273-4765-9385-
59e58078678e/eur010012012en.pdf.
17
A private member bill to ban face covering in public was discussed in
Parliament in the fall of 2013.
See
George Eaton,
Tory MP’s Ban
the Burqa Bill Reaches Parliament
, NEWSTATESMAN (Sept. 6, 2013),
http://www.newstatesman.com/politics/2013/09/tory-mps-ban-burqa-bill-
reaches-parliament.
18
In September 2012, the Swiss Senate rejected by ninety-three to eighty-
seven votes an initiative proposed by the canton of Aargau which was aimed at
banning full face veiling from public spaces.
Burqa Ban Proposal Thrown Out
by Parliament
, SWISSINFO.CH (Sept. 28, 2012), http://www.swissinfo.ch/
eng/swiss_news/Burka_ban_proposal_thrown_out_by_parliament.html?cid=33
611716. Proposed bans were rejected in the cantonal parliaments of Basel
City, Bern, Schwyz, Solothurn, and Fribourg.
Ticino to Vote on Burka Ban
,
SWISSINFO.CH (Aug. 12, 2013), http://www.swissinfo.ch/eng/swiss_news/
Ticino_to_vote_on_burka_ban.html?cid=36646320.
19
The parliamentary Commission on Constitutional Affairs approved a
bill on August 2, 2011 (“Divieto di Indossare gli Indumenti Denominati
Burqa
e
Niqab
”) that would prohibit persons from going in public wearing any
garment covering the face, rendering it punishable with fines of 100 to 300
euros. Legge 24 Ottobre 2011, n. 216/3, A.C. 627-A (It.),
available at
http://www.camera.it/701?leg=16&file=AC0378C.
20
In February 2013, the Supreme Court of Spain overturned a city
authority ban in Catalonia on the basis that it limited religious freedom, and
that the city lacked the authority to order such a prohibition. S.T.S., Feb. 6,
2013 (R.A.J., No. 4118/2011) (Spain). In Belgium, contradictory case law on
the application of local bans to face veils was one of the reasons for the
enactment of the general ban.
See
Politierechtbank [Pol.] [Police court], Jan.
26, 2011, (Belg.) (on file with author); Politierechtbank [Pol.] [Police court]
Tongeren, June 12, 2006, no. 05A79 (Belg.) (on file with author) (finding no
such violation). In Italy, two courts found that the 1975 Public Order
Protection Act could not be regarded as grounds for municipalities prohibiting
face veils in public space in general.
See
TAR Trieste, 16 Ottobre 2006, nr.
645; Diritto & Giustizia, n° 44, 2006, 111–13, Giurisprudenza di merito, n°
9, 2007; Giur. it. 2007, 2423 (It.); Cons. Stato, 19 Giugno 2008,
no. 3076,
available at
http://religare-database.eu/PDF/PDFwp5Italy/
ConsiglioBurqa2008.pdf;
see also
Mathias Möschel,
La Burqa en Italie: d’une
Politique Locale à une Législation Nationale
,
in
QUAND LA BURQA PASSE À

FACE VEIL BANS IN THE ECHR
523
Conseil d’Etat
even advised in a report against the adoption of the
nationwide ban since “no incontestable legal basis” could be
provided for such a general ban.
21
Similarly, the Dutch Council
of State advised against the adoption of a face-covering ban.
22
Such advice has been ignored. Both the French Conseil
Constitutionnel
23
and the Belgian Constitutional Court
24
have
validated the nationwide bans on face veils. Those courts held
that such bans did not violate any fundamental rights, as protected
in their respective constitutions and the European Convention on
Human Rights (ECHR).
However, it is the European Court of Human Rights (“the
court”) that will deliver the final word in this matter. As
mentioned above, a challenge to the French face-covering ban in
the case of
S.A.S. v. France
is currently pending before a Grand
Chamber of the Court.
25
A public hearing was held on November
27, 2013,
26
and the court’s judgment is expected sometime this
year.
The applicant in
S.A.S. v. France
is a French citizen born in
Pakistan who lives in the Paris region.
27
She is a law graduate
L’OUEST; ENJEUX ETHIQUES, POLITIQUES ET JURIDIQUES (David Koussens &
Olivier Roy eds., 2013).
21
CONSEIL D’ETAT, ETUDE RELATIVE AUX POSSIBILITÉS JURIDIQUES
D’INTERDICTION DU PORT DU VOILE INTEGRAL (2010).
22
Parliamentary document, Feb. 3, 2012, TK 33165, at nr. 2,
available at
https://zoek.officielebekendmakingen.nl/kst-33165-2.pdf; the advice of the
Council of State, Nov. 28, 2011, TK 33165, at nr. 4,
available at
https://zoek.officielebekendmakingen.nl/kst-33165-4.pdf. In the Netherlands,
as in Belgium and France, one of the powers of the Council of State is to give
advice on proposed legislation, concerning its legality and in particular its
conformity with higher law. Such advice, however, is not binding.
23
See
supra
note 11 and accompanying text.
24
See supra
note 12 and accompanying text.
25
S.A.S. v. France, App. No. 43835/11, Eur. Ct. H.R.
26
See
Saïla Ouald Chaib,
S.A.S. v. France: A Short Summary of an
Interesting Hearing
, STRASBOURG OBSERVERS (Nov. 29, 2013),
http://strasbourgobservers.com/2013/11/29/s-a-s-v-france-a-short-summary-of-
an-interesting-hearing/.
27
Witness Statement of the Applicant, Annex 1 to Final Observations, ¶¶
1–2, S.A.S. v. France, Eur. Ct. H.R. (App. No. 43835/11) [hereinafter
Witness Statement of the Applicant] (on file with author).

524
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who completed an internship with a law firm in Birmingham,
with whom she submitted the case before the European Court of
Human Rights.
28
She stated that, before the ban, she had been
wearing the face veil on a regular basis since she was 18 years
old:
Gradually, I wore my full face veil whenever I
passed through public areas, traveled on public
transport or visited public buildings (generally
three times a week) . . . . Of course, for instance,
I would take off my veil if I needed to visit the
doctor or keep an official appointment.
29
Since she submitted the application on the day the ban went
into effect, at that point she had not yet been stopped by the
police or fined for wearing her veil. However, in a witness
statement submitted two years later, she discussed how the ban
had negatively affected her life, stating that
as a result of the implementation of Loi no. 2010-
1192 I now live under the threat of both state
prosecution and public persecution. As a result of
the implementation of Loi no. 2010-1192 I am now
vilified and attacked on the streets of the Republic
I live, effectively reduced to house arrest, virtually
ostracized from public life and marginalized.
30
In that same statement she continues to provide additional
information about the negative impact the ban has had on her
daily life:
criminalisation, or rather the political
scaremongering that preceded it, has incited
members of the public to now openly abuse and
attack me whenever I drive wearing my veil.
Pedestrians and other drivers routinely now spit on
28
Id
. ¶ 15.
29
Id
. ¶ 22–23. This is a correction to the statement in the application that
“[t]he Applicant does not wear the niqab in public places at all times . . . . As
to when the Applicant chooses to wear the niqab in the public place depends
very much on her introspective mood, spiritual feelings and whether she
wishes to focus on religious matters.” Application ¶ 3, S.A.S. v. France, Eur.
Ct. H.R. (App. No. 43835/11).
30
Witness Statement of the Applicant,
supra
note 27, ¶ 6.

FACE VEIL BANS IN THE ECHR
525
my car and shout sexual obscenities and religious
bigotry. Consequently, I now feel like a prisoner
in my own Republic, as I no longer feel able to
leave my house unless it is essential. I leave the
house less frequently as a result. I wear my veil
with even less frequency when out in public as a
result. Indeed, I also feel immense guilt that I am
forced to no longer remain faithful to my core
religious values.
31
In addition, the applicant’s fear of harassment motivated her
request for anonymity,
32
which was granted by the court. Her
testimony is consistent with the testimony of other individuals
who wear face veils about the impact that the ban has had on their
daily lives.
33
However, in one respect, the applicant is not so
representative. At the end of her witness statement, she put
forward several “compromise proposals”:
Firstly, I would be willing to accept restrictions
regarding the visibility of the veil’s material, i.e.
to wear only veils that were diaphanous “see-
through,” thus ensuring that my facial features
remained essentially visible . . . . Secondly, I
would be willing to accept exemptions enabling
full face veils to be worn during the fasting periods
and festivities of Ramadan and Eid.
34
31
Witness Statement of the Applicant,
supra
note 27, ¶ 26. A car on a
public road is not considered part of the “public space” under the French ban,
as per an interpretative circular: Circulaire du 2 mars 2011 relative à la mise
en œuvre de la loi n° 2010-1192 du 11 octobre 2010 interdisant la
dissimulation du visage dans l’espace public, JORF n°0052 (Mar. 3, 2011), at
4128.
32
Application,
supra
note 29, ¶ 1.
33
In particular, see OPEN SOC’Y JUSTICE INITIATIVE, AFTER THE BAN:
THE EXPERIENCES OF 35 WOMEN OF THE FULL-FACE VEIL IN FRANCE (2013)
[hereinafter AFTER THE BAN], which was submitted as additional evidence with
the Third Party Intervention of Open Society Justice Initiative, S.A.S. v.
France, App. No. 43835/11, (Eur. Ct. H.R. filed Oct. 2, 2013),
available at
http://www.opensocietyfoundations.org/sites/default/files/after-the-ban-
experience-full-face-veil-france-20140210.pdf.
34
Witness Statement of the Applicant,
supra
note 27, ¶ 33.

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It seems unlikely that other individuals who wear face veils in
France or Belgium would agree with these proposals. Even
though the willingness to compromise may be present (e.g., one
Belgian respondent had approached her mayor with a proposal to
avoid the color black for her face veil), these options seem to
affect the essence of the women’s claims, and hence to go beyond
a reasonable, compromised solution.
As the European Court of Human Rights is situated on French
territory, the face-covering ban prevented the applicant from
attending the hearing in her case. The applicant’s attorney
informed the court that the applicant would like to attend, yet
wished for “confirmation from the court that there will be
provision for her to wear her full face veil during the proceedings
including but not limited to transit to and from the court.”
35
The
reply stated that the court could not guarantee that the applicant
would be able to wear the full face veil while traveling to and
from the court. With regard to whether the applicant could wear
her face veil during the hearing, the deputy Grand Chamber
registrar who signed the reply wrote that:
the President has asked me to draw your attention
to the fact that the applicant’s request confronts
him with a question that is complex and sensitive,
since it places the Court in a situation where the
answer could be seen by the parties and external
observers as an indication of an opinion on the
merits of the issues to be examined at the hearing.
He invites the applicant to contemplate her request
in the light of the foregoing and to inform him . . .
if she wishes to maintain it.
36
35
Letter from Sanjeev Sharma, counsel at J.M. Wilson Solicitors LLP, to
the president of the Grand Chamber of the European Court of Human Rights
(Nov. 11, 2013) (on file with author) (“If she is not permitted to cover her
face then her anonymity status becomes redundant. She is in a quandary. She
does not wish to find herself in the position of having broken the law by
attending Court yet she wishes to exercise her fundamental right to be present
at her own hearing.”).
36
Letter from Johan Callewaert, Deputy Grand Chamber Registrar, to
Sanjeev Sharma, counsel at J.M. Wilson Solicitors LLP (Nov. 14, 2013) (on
file with author).

FACE VEIL BANS IN THE ECHR
527
As a result of this reply, the applicant did not attend.
In this case, the court accepted third party interventions from
the Belgian government, as well as from the Human Rights
Centre of Ghent University,
37
the NGO Liberty,
38
Amnesty
International, Open Society Justice Initiative (“Open Society”),
39
and the group Article 19.
40
Among the third party interveners,
both Open Society and the Human Rights Centre of Ghent
University submitted empirical data in addition to legal
arguments. In April 2011, when the French ban went into effect,
Open Society published data from interviews with 32 women
wearing the face veil in France, during which it inquired into
their motivations and experiences.
41
This report was added to
Open Society’s written submission and was referred to
extensively in Liberty’s submission. In addition, and specifically
in light of
S.A.S v. France
, Open Society conducted a follow-up
37
See
Third Party Intervention of the Human Rights Center of Ghent
University, S.A.S. v. France, App. No. 43835/11, (Eur. Ct. H.R. filed May
15, 2013),
available at
http://www.ugent.be/re/publiekrecht/en/department/
human-rights/publications/sas.pdf/at_download/file. In response to the French
government’s arguments attempting to undermine the credibility of both the
French and Belgian empirical studies,
see
French Government Submissions in
Response to the Third Party Interventions at 6–7, S.A.S. v. France, App. No.
43835/11, (Eur. Ct. H.R. filed Sept. 17, 2012), the Ghent University Human
Rights Centre exceptionally got permission from the president of the Grand
Chamber to submit a reaction, which was submitted on Nov. 24, 2013.
38
Written Submissions on behalf of Liberty (Intervenor), S.A.S. v.
France, App. No. 43835/11, (Eur. Ct. H.R. filed May 7, 2012),
available at
http://www.liberty-human-rights.org.uk/about/legal/interventions/s.a.s.-v-
france-european-court-of-human-rights-2012.pdf.
39
Written Comments of the Open Society Justice Initiative, S.A.S. v.
France, App. No. 43835/11, (Eur. Ct. H.R. filed July 10, 2012),
available at
http://www.opensocietyfoundations.org/sites/default/files/sas-france-written-
comments-20130423.pdf.
40
Third Party Intervention Submissions by Article 19, S.A.S. v. France,
App. No. 43835/11, (Eur. Ct. H.R. filed 2012),
available at
http://www.article19.org/data/files/THIRD_PARTY_INTERVENTION_SUB
MISSIONS_BY_ARTICLE_19.pdf.
41
See
OPEN SOC’Y FOUND., UNVEILING THE TRUTH: WHY 32 MUSLIM
WOMEN WEAR THE FULL-FACE VEIL IN FRANCE (2011),
available at
http://www.opensocietyfoundations.org/sites/default/files/a-unveiling-the-
truth-20100510_0.pdf.

528
JOURNAL OF LAW AND POLICY
study, documenting the experiences of individuals who wore face
veils after the ban.
42
It received the court’s permission to add the
report to its submission. In Belgium, the Human Rights Centre at
Ghent University conducted similar research by interviewing 27
women, partly before and partly after Belgian’s ban on face veils
went into effect.
43
The argumentation in the Centre’s third party
intervention relies strongly on that data. Such data are vital to
understanding the legal rationale behind the applicant’s case.
II. RELEVANT PROVISIONS AND LEGAL TEST
The applicant in
S.A.S. v. France
alleges a violation of
Articles 3, 8, 9, 10, 11, and 14 of the ECHR.
44
Relying on
42
See AFTER THE BAN,
supra
note 33, which was submitted as additional
evidence for Third Party Intervention of Open Justice Initiative in S.A.S. v.
France, App. No. 43835/11, 2014 Eur. Ct. H.R. (Oct. 2, 2013).
43
See
BREMS ET AL., WEARING THE FACE VEIL,
supra
note 8;
see also
Eva Brems et al.,
The Belgian “Burqa Ban” Confronted With Insider Realities
,
in
THE EXPERIENCES OF FACE VEIL WEARERS,
supra
note 5.
44
Convention for the Protection of Human Rights and Fundamental
Freedoms § 1, art. 9, Nov. 4, 1950, 213 U.N.T.S. 230 [hereinafter ECHR].
The relevant articles are as follows:
Article 3 ECHR:
No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.
. . .
Article 8 ECHR:
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the
interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
Article 9 ECHR:
1. 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, to manifest his religion

FACE VEIL BANS IN THE ECHR
529
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.
Article 10 ECHR:
1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall
not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the
authority and impartiality of the judiciary.
Article 11 ECHR:
1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the right
to form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or
crime, for the protection of health or morals or for the
protection of the rights and freedoms of others. This Article
shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of
the police or of the administration of the State.
Article 14 ECHR:
The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.

530
JOURNAL OF LAW AND POLICY
Article 3, the prohibition of torture and inhuman and degrading
treatment, the applicant contends that since it is illegal to wear a
garment designed to conceal the face in public places, if she
wears her face veil in public she risks incurring a criminal
penalty, as well as suffering harassment and discrimination.
45
In
addition, under Article 8, which protects the right to privacy in
the home and family, the applicant complains that the ban, which
prohibits her from dressing as she chooses in public, is a
violation of her right to respect for private life.
46
The applicant
also claims that Article 9 of the ECHR, which protects
manifestation of religion or belief, is violated by the ban on face
veils. Effectively, she argues that her inability to wear the full
veil in public places denies her the freedom to manifest her
religion or belief.
47
Additionally, she contends that the ban
violates Article 10, the right to freedom of expression.
Specifically, the ban prevents her from wearing in public a
garment that expresses her faith, as well as her religious,
cultural, and personal identity.
48
Furthermore, she alleges that the
ban violates Article 11’s freedom of assembly and association,
since if she cannot wear her veil, she cannot go into public, and
thus cannot associate with others.
49
Finally, she contends that the
ban ignores Article 14, which prohibits discrimination based on
gender, race, language, religion, or any other status. In
particular, the applicant complains that the face covering ban, by
its very nature, engenders discrimination based on sex, religion,
and ethnic origin against women who, like her, wear the full
45
ECHR, Fifth Section, Questions for the Parties, S.A.S. v. France,
App. No. 43835/11, (Eur. Ct. H.R.) (undated) (on file with author).
46
ECHR,
supra
note 44. Under the right to protection of private life, the
European Court of Human Rights protects a wide range of autonomy-related
interests, arguably including dress styles. The (former) European Commission
of Human Rights (EComHR) has ruled, for instance, that constraints imposed
on a person’s choice of mode of dress constitute an interference with private
life as ensured by Article 8 of the Convention.
See
Kara v. United Kingdom,
Y.B. Eur. Conv. on H.R. (Oct. 22, 1998).
47
ECHR,
supra
note 44.
48
Id.
49
Id.

FACE VEIL BANS IN THE ECHR
531
veil.
50
It is important to begin with the understanding that Article 3
is an absolute right: once a certain treatment falls under its scope,
it is automatically a violation, regardless of its justification. The
main legal question is therefore one of a threshold of severity:
can the treatment that the applicant complains of be labeled
“inhuman” or “degrading?” The idea that the risk of a criminal
penalty—in this case a fine—could be considered degrading or
inhuman is farfetched. Yet, the claim that the ban exposes women
who wear a face veil to harassment raises a relevant issue. The
applicant in
S.A.S.
“believes that if she wears the niqab[,]
members of the public . . . will request her without proper
justification to remove it and will in the process harass and
discriminate against her thereby exposing her to degrading
treatment.”
51
The research in France and Belgium demonstrates
that women who wear a face veil in those countries suffer serious
harassment. This research also strongly suggests that such
harassment has increased as a result of the bans, with many
citizens acting as vigilante policemen.
52
It may legally be possible
to hold the French government accountable under Article 3 for
not adequately protecting women who wear a face veil. Yet the
applicant is making a different point, namely that by introducing
the face covering ban, the French state has implicitly, if not
explicitly, encouraged aggression against women who wear face
veils. Accepting this line of reasoning would be innovative.
However, since there is almost no hard evidence linking the
aggressions directly to the adoption of the law, it is unlikely that
50
Id.
51
Exposé des faits et questions aux parties ¶ 11, S.A.S. v. France, App.
No. 43835/11 (Eur. Ct. H.R. filed Apr. 11, 2011), http://hudoc.echr.coe.int/
sites/eng/pages/search.aspx?i=001-110063.
52
BREMS ET AL., WEARING THE FACE VEIL,
supra
note 8, at 17–21.
AFTER THE BAN,
supra
note 33, at 13, reports that the majority of interviewees
experience verbal abuse on a regular basis, and that twelve respondents
reported physical assaults, such as having their veil pulled off and being
violently pushed or spat on. It notes that “the ban and public discourse seems
to have implicitly legitimized the abusive treatment of veiled women. With a
widespread condemnation of the full-face veil, the women’s testimonies reveal
that some members of the public seem to think that the law allows for or
legitimizes private enforcement.”
Id.

532
JOURNAL OF LAW AND POLICY
the court will be persuaded by this argument.
Under all the other ECHR provisions that are invoked in this
case, the court instead engages in a balancing exercise between
the right that is at stake and the interest that is invoked by the
government as a “legitimate aim” that may justify a proportionate
restriction of that right. It is likely that the court will discuss the
impact of the ban under Article 9, stating that its reasoning
applies
mutatis mutandis
to the claims under Articles 8
53
and 10.
54
The court may dismiss the claim under Article 11.
55
But the court
should address the discrimination claim under Article 14 in
combination with one or more of the other Articles of ECHR
separately.
56
This is because the face covering bans are manifest
examples of seemingly neutral legislation that is in fact targeted at
a specific group, namely Muslim women who wear a face veil.
The European Court of Human Rights recognizes that “a general
policy or measure that has disproportionately prejudicial effects
on a particular group may be considered discriminatory
notwithstanding that it is not specifically aimed at that group,”
57
53
The applicant argues applicability of Article 8 of the ECHR on multiple
grounds: (1) the full face veil provides the person wearing it a sense of acute
or extended privacy; (2) the matter relates to the applicant’s individual
autonomy concerning her identity and dress code; (3) wearing the face veil is
related to her ability to interact with others; (4) the exposure to public hostility
infringes upon her physical and psychological integrity; and (5) the face veil is
a cultural practice of a minority group.
See
Final Observations, S.A.S. v.
France, App. No. 43835/11, ¶¶ 39–47 (Eur. Ct. H.R. July 4, 2013).
54
The relevance of freedom of expression for this case was particularly
emphasized in the submission by Article 19 before the Grand Chamber, i.e.,
after the Fifth Sections “questions to the parties,” where it was not included.
See
Third Party Intervention Submissions by Article 19,
supra
note 40.
55
In this respect, it is noteworthy that before relinquishing jurisdiction to
the Grand Chamber, the Fifth Section of the Court sent three questions to the
parties, pertaining to their opinion on a positive violation of Articles 8, 9, and
14 only, the latter moreover being restricted to discrimination based on
religion or sex. Exposé des faits et Questions aux parties,
supra
note 51.
56
Article 14 of ECHR prohibits discrimination in the exercise of any of
the Convention rights, and hence has to be invoked together with another
ECHR provision.
See
ECHR,
supra
note 44.
57
D.H. v. Czech Republic, App. No. 57325/00, 2007-IV Eur. Ct. H.R.,
para. 175, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256
ECtHR.

FACE VEIL BANS IN THE ECHR
533
i.e. the concept of indirect discrimination. This does not require
proof of discriminatory intent even though in these cases this
proof would not be hard to find.
It is clear that “the legislative history of the law demonstrates
that the intent was to regulate the
burqa
and
niqab
, which were
specifically identified as the target of the ban.”
58
The effective
move towards a general ban on face covering in France began not
long after MP André Gérin, along with others, filed a resolution
on June 9, 2009 aimed at establishing a commission of inquiry
concerning the face veil on French territory.
59
Not long
afterwards, President Nicolas Sarkozy, in a speech on June 22,
2009, stated that such veils were not welcome in France and that
legislation was necessary “to protect women from being forced to
cover their faces and to uphold France’s secular values.”
60
That
the ban is aimed at the face veil, despite its neutral language, is
furthermore obvious on account of the constant references to the
face veil throughout the parliamentary debates. Moreover, the
opinion requested by the Prime Minister from the Conseil d’Etat
in the early drafting stages concerned the “legal grounds for a
ban
on the full veil
.”
61
Clearly the ban was not about the visibility
of faces in general, but specifically about the Islamic face veil. In
that sense, the applicant is right to state that “this is a case where
the discriminatory treatment comes very close to direct
discrimination,”
62
on grounds (e.g., sex,
63
religion
64
) for which
58
Written Comments of the Open Society Justice Initiative,
supra
note 39,
¶ 6.
59
Willy Fautré,
Is the Burqa Compatible with Women’s Rights? The
“Burqa issue” in the EU
, Paper Presented at the Burqa and Women’s Rights
Conference at the European Parliament in Brussels (June 10, 2010),
available
at
http://strasbourgconsortium.org/document.php?DocumentID=5170.
60
Cécilia Gabizon,
Sarkozy:
“La Burqa n’est pas la Bienvenue
,
”
LE
FIGARO (June 25, 2009), http://www.lefigaro.fr/politique/2009/06/23/01002-
20090623ARTFIG00055-sarkozy-la-burqa-n-est-pas-la-bienvenue-.php.
61
CONSEIL D’ETAT, SECTION DU RAPPORT ET DES ETUDES,
supra
note 21,
at 7 (emphasis added).
62
Final Observations,
supra
note 53, ¶ 141.
63
Stec v. United Kingdom, App. Nos. 65731/01 & 65900/01, 2006-VI
Eur. Ct. H.R., ¶ 52, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?
i=001-73198.
64
Hoffmann v. Austria, App. No. 12875/87, 1993 Eur. Ct. H.R., para.

534
JOURNAL OF LAW AND POLICY
the court exercises strict scrutiny.
Regardless, once the applicant has demonstrated that there is a
difference in treatment or a disproportionate prejudicial effect,
the burden shifts to the government to prove that the difference in
treatment pursued a legitimate aim in a proportionate manner. At
that point the review of any claim for discrimination would be
examined under a similar analysis as that used for Articles 8, 9,
10, or 11 of the ECHR. Under this analysis, an interference with
a right can only be justified if it has a legal basis, pursues a
legitimate aim from among those listed in the restriction clause,
65
and—most importantly—if there is a reasonable relationship of
proportionality between the restrictive measure and that aim.
Hence, whether the court conducts its analysis of the ban under
the prohibition of discrimination or religious freedom, or both,
the focus of the court’s reasoning will be on the examination of
whether the ban can be considered proportionate to one or several
legitimate aims.
According to the French Government in
S.A.S.
,
the
“legitimate aim” underlying the face covering ban, involves three
policy goals: (1) the protection of public safety; (2) respect for
“compliance with the minimal requirements of life in society”;
and (3) “equality between men and women and respect for the
dignity of the person.”
66
III. UNCOVERING IN THE NAME OF “THE MINIMAL REQUIREMENTS
OF LIFE IN SOCIETY?”
“Public safety” is explicitly mentioned in Article 9(2) as a
36, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57825.
65
Several provisions of the ECHR are drafted in such a way (similar to
other conventions such as the ICCPR), that the first paragraph sets out the
scope of the right, whereas the second paragraph contains the conditions for its
legitimate restriction. These restriction clauses set out three conditions: the
restrictive measure should have a legal basis; it needs a legitimate aim from
among those listed in the restriction clause; and it has to be “necessary in a
democratic society,” i.e., proportionate with respect to the realization of that
aim.
66
French Government Submissions, S.A.S. v. France, App. No.
43835/11 (Eur. Ct. H.R. filed July 31, 2013),
supra
note 37, para. 94.

FACE VEIL BANS IN THE ECHR
535
legitimate aim that may justify proportionate restrictions of
religious freedom.
67
Additionally, the protection of equality
between men and women and of human dignity could also be a
legitimate aim under Article 9 due to language regarding “the
protection of the rights and freedoms of others.”
68
Yet, it is not
clear that respect for “the minimal requirements of life in
society” fits under any of the “legitimate aims” under Article 9.
69
The French Council of State was the first to suggest that this idea
of “minimal requirements of life in society” could be legally
translated into a novel interpretation of the concept of “public
order,” building on the idea of “non-material public order.”
70
The Council of State noted that such a concept had not been
developed in French legal doctrine or case law, and was not
found in any neighbouring legal system either. Hence, the
Council of State considered the concept of non-material public
order vulnerable to constitutional challenges and advised against
its use. However, French MPs borrowed the new concept, also
naming it “social public order,” and built their case for a ban on
face coverings largely on that ground. It is, however, far from
certain whether the court will agree with this line of reasoning.
At the public hearing, one of the judges asked the representative
of the French government how she viewed the policy goal of
“minimal requirements of life in society” coexisting with the list
of legitimate aims in the second paragraph of Article 9 of the
ECHR. The representative’s answer referred to “the protection of
the rights and freedoms of others.”
71
This answer, however,
supposes the existence of a right to see the face of others in a
67
See
ECHR,
supra
note 44.
68
Id.
69
Id.
70
CONSEIL D’ETAT, SECTION DU RAPPORT ET DES ETUDES,
supra
note 21,
at 26–27. On the concept of non-material public order in this context, see Rim-
Sarah Alouane,
Bas les Masques!
Unveiling Muslim Women on Behalf of the
Protection of Public Order: Reflections on the Legal Controversies Around a
Novel Definition of “Public Order” Used to Ban Full-Face Covering in
France
,
in
THE EXPERIENCES OF FACE VEIL WEARERS,
supra
note 5.
71
This quote was taken from notes the author took during oral hearing of
the Grand Chamber of the European Court of Human Rights in
S.A.S. v.
France
in Strasbourg, France, on November 27, 2013.

536
JOURNAL OF LAW AND POLICY
public space. This is certainly not a legal right.
In the French debates surrounding the face-covering ban,
seeing the face of others has been put forward as a moral right.
This view is based on the work of the French sociologist
Elisabeth Badinter, who was interviewed by the parliamentary
commission of inquiry,
72
and of the French philosopher
Emmanuel Levinas. The latter’s discourse about the “face of the
other,” as the basis for meeting another person and being morally
involved,
73
was interpreted literally (as referring to the actual face
of a human being as the crucial building stone for moral relations
in a society, rather than the presence of the other in our midst) by
the Commission of Inquiry,
74
and by the French government in its
arguments in
S.A.S. v. France
.
75
However, the applicant rightly
alleges that
the government is treading on dangerous ground
when it attempts to justify a legal measure by
postmodern philosophy, which by its very nature is
highly complex and not capable of clear-cut
interpretations, let alone one “correct”
interpretation. Arguably, the law prohibiting
covering the face in public is not at all in line with
the spirit of Levinas’ philosophy as his idea of
“face-to-face encounter” is centred on inherent
respect for the other—the opposite of what the law
in question achieves.
76
72
GÉRIN,
supra
note 1, at 118.
73
See
FACE OF THE OTHER AND THE TRACE OF GOD: ESSAYS ON THE
PHILOSOPHY OF EMMANUEL LEVINAS (Jeffrey Bloechl, ed., 2000); RICHARD
A. COHEN, FACE TO FACE WITH LEVINAS (1986).
74
GÉRIN,
supra
note 1, at 117–18.
75
French Government Submissions,
supra
note 37, ¶ 104. In addition,
the Belgian government, as well as the French government in its oral
arguments, referred to the Belgian philosopher Guy Haarscher.
See
Third
Party Intervention of the Belgian Government at 4, S.A.S. v. France (Eur. Ct.
H.R. filed Sept. 18, 2013).
76
Final Observations,
supra
note 53, ¶ 90. It is added, moreover, that
[e]ven if one accepts a literalist interpretation of Levinas that
it is crucial actually to see the other’s face for an ethical
obligation towards her to arise, it is still absurd to conclude
that that leads to the compulsory uncovering of the face, so

FACE VEIL BANS IN THE ECHR
537
The level of subjectivity and cultural bias inherent in the
“minimal requirements of life in society” argument becomes even
more apparent in the submissions by the Belgian government,
which advance the fact that it is considered respectful to take off
sunglasses during conversation, and states without any reference
to authority that appearing on the street implies a readiness to be
looked at that is an inherent limit to the right to isolation.
77
This
that such an obligation towards the legally sanctioned person
can be created. In other words, even if one accepts the idea
that the face has special importance in the western tradition,
it is a far cry to enforce uncovering the face by penal
sanctions. If the Respondent followed its own logic through,
it ought also to introduce a law making touching the other in
the public space compulsory, as skin contact is also a feature
of Levinasian discourse. The absurdity of the Respondent’s
argument is evident and fails to take into account the cultural
practices of minorities which does not necessarily subscribe
to this philosophical ideology.
Id.
77
Third Party Intervention of the Belgian Government,
supra
note 75, at
6.
A parallel can be drawn: it is today still generally considered
more respectful toward others to take off one’s sunglasses in
conversation so as to allow real and complete interaction. So
many emotions pass through our face and specifically
through our eyes. The eyes even promote listening. Trying to
interact with respect for others without the classical rituals of
greeting and looking (“les rituels classiques du bonjour et du
regard”), is not well preparing the field of the relation. The
right to isolation has its limits. I can go out on the street and
not feel like engaging in a long conversation, but I have be
ready to be watched and, ideally, greeted, even by someone
who is a stranger to me. The notion of dignity in dressing
and social contacts is relatively subjective yet the more a
society is multicultural and the more types of religious and
philosophical convictions and types of cultural customs
coexist, the more persons have to be careful to not show
them in a too demonstrative manner on the public street. The
vestimentary codes in our societies are the product of a
societal consensus, they are the fruit of a balanced
compromise between our individual liberty and our codes of
interaction in society.
Id.
(translated by author from French).

538
JOURNAL OF LAW AND POLICY
view results from translating the philosophical rhetoric into
concrete behavioral requirements. The idea being that people who
choose to be in public are not allowed to make themselves
unavailable for interaction with others or to give such an
impression. It also assumes that not showing one’s face should
automatically be considered as a signal of withdrawal from, or
unavailability for, social interaction.
78
Yet, even if one accepts
furthering social interaction as a “legitimate aim” that may justify
restrictions of fundamental rights as a matter of principle, it
appears difficult to justify the necessity of a face-covering ban in
all public spaces to further this aim.
First, it is important to consider if wearing a face veil really
prevents communication. In an age of mobile phones and online
communities, the philosophical claim that someone cannot meet
someone else without looking him or her in the face seems
detached from reality. Several women interviewed expressed a
self-image that included them as open or sociable persons. Many
of the women stated that, from their perspective, communication
is perfectly possible, even if they recognize that the veil could be
experienced as a communicative barrier by those they speak to.
Within their familiar environment, especially before the ban,
women who wear a face veil participated in a range of social
activities involving contact with others at schools, in shops, and
administrative offices among others.
For example, one interviewee described her experience as
follows, “Me, I talk to everybody, everybody sees me laugh;
they answer me in the same tone if they want to. When they don’t
want to, that’s another matter.”
79
Another interviewee also shared the following recollection.
At the time I lived in a neighborhood of old
78
Compare with the argument of the Belgian government that “[p]ersons
who wear a garment that hides their face completely or mostly send a signal to
the majority of those [women] who pass them that they do not want to
participate in society in an active manner.”
Id.
(translated from French by the
author). Note that the way this argument is framed admits that this is a
judgment faced by those who are confronted with face veil-wearers, and it is
not even claimed that this is the intention of the face veil-wearers themselves.
79
Interviews by Eva Brems et al. with Belgian niqabis, at nr 4
[hereinafter Interviews with Belgian niqabis] (on file with author).

FACE VEIL BANS IN THE ECHR
539
people . . . . And these people recognized me
without any problem and they acted toward me as
if they saw whoever else in the street . . . . We
were good neighbors, and I remember that when
we moved, the old people were even sad because
they told us: “Oh, we knew you so well and we
knew that we could count on you, that we could
ask you something.” There was even an old lady,
who lived upstairs where I lived, and whose
children did not visit her. And she told me, “it is
so good of you, that you come and visit the
elderly,” because I visited her from time to time
with my children. So it does not stand in the way
of anything at all. It is enough to want to accept
the difference and to understand that behind that
face veil, there is a person who is completely
normal
.
80
Similarly, the applicant in
S.A.S. v. France
states:
The most important thing about how I
communicate [is] my words and how I follow them
up with deeds—not the visibility of my face. My
veil compels others to respond to my brains, not
my body; to respond to what I say, not how I look
when I say it; on my character, not my clothes.
81
Moreover, many interviewees reported positive contacts when
they interacted with people who they had previously been
unacquainted with. Several women told stories of how a
conversation with an initially suspicious stranger turned into a
positive exchange. For example,
In a supermarket, people told me “madam, why do
you wear that?” I came closer to a gentleman and
told him what the religion says. It is not mandatory
but if you do it on your own initiative . . . . He
told me “maybe your husband forced you.” I said
“you see, I do my shopping all alone, and I drive
alone, there is nobody with me.” And he was
80
Id.
at nr 25.
81
Witness Statement of the Applicant,
supra
note 27, ¶ 20.

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JOURNAL OF LAW AND POLICY
satisfied.
82
The empirical findings thus reveal the erroneous character of
one of the main assumptions legislators had for banning the face
veil, namely that the face veil indicates a withdrawal from social
interaction. At least before the ban, women wearing a face veil
were in fact interacting in numerous ordinary ways with society
at large. Moreover, it appears that the ban has not increased these
women’s social interactions. In fact, the ban may have
decreased
these women’s social interactions. Many women who choose to
wear a face veil are strongly attached to it and continue to wear it
despite the ban, meaning that they now avoid going into public
except by car. These women are afraid of an encounter with the
police as well as of the harassment and aggression by strangers.
Hence, instead of increased social interaction, the effect of the
ban on these women is a deterioration of their social life, their
interactions with society at large, and their mobility.
Women report that the ban has led to women who wear face
veils being harassed even more than before, severely limiting
their ability to interact with society. A French face veil wearer
reports a typical incident of harassment:
Last time I went to Auchan (supermarket EB), a
mob formed around me and people were saying
“what are you doing here? It’s forbidden! You
have no right to go out entirely veiled. It’s banned,
it’s illegal. Go back to your country.” [I] feel like
a monster. Even pedophiles and criminals, are not
treated like that . . . . We are seen as less than
nothing, not as human beings.
83
Another woman reports the negative effects of the ban on her
life as a mother, “I don’t go out at all with my son. At two and a
half he’s at the age to go to the park, to play outside. It’s not
something I can do with him because I’m scared.”
84
Even if some women did take off the face veil as a result of
the ban,
85
and it did result in their being more easily approached
82
Interviews with Belgian niqabis,
supra
note 79, at nr 2.
83
AFTER THE BAN,
supra
note 33, at 15.
84
Id.
at 12.
85
Among the thirty-five women interviewed in France after the ban, eight

FACE VEIL BANS IN THE ECHR
541
by others in the public sphere,
86
the ban is a disproportionate
measure to achieve that effect. The research suggests that the ban
is a disproportionate measure to achieve that effect. In practice,
women can and do communicate with their faces veiled. As the
above interviews have shown, women who wear a face veil do
experience positive exchanges. Social integration is a matter of
goodwill on both sides and is likely to be better realized by
inclusive means rather than ones that are repressive.
IV. BANNING IN THE NAME OF SAFETY?
In the public discussion surrounding face-covering bans, the
safety argument often concerns subjective feelings of danger that
are generated by the sight of a woman who covers her face. In
the Belgian Parliament, for instance, the introduction of a face
veil ban was compared to placing street lamps in a dark alley in
order to reduce the fear of crime and provide a feeling of public
security.
87
In our interviews, veiled women recounted experiences
of engendering feelings of unease or fear in others. One woman
stated, “I understand completely that people are scared. It’s
normal, because it’s covered, it’s hidden, you don’t know what’s
underneath. At first sight, it’s shocking.” At the same time, these
women’s stories also show that it is possible to overcome these
feelings and to establish meaningful contacts and relationships
with others. These contacts and relationships appear to exist in
particular with persons with whom there is regular interaction and
who may therefore be assumed to be “used to” the veil.
Examples include neighbors, teachers, and shopkeepers. Thus,
any feelings of danger do not necessarily accompany contact with
veiled women, and as such those feelings can be overcome, it is
respondents have removed their full-face veil, while twenty-seven continue to
wear it despite the ban.
See id.
at 2.
86
It should be noted, however, that the aggression of the public at large
appears to extend to women who dress in a conservative, Islamic manner, even
without a face veil. Hence, it is far from certain that those same women, when
they take off the face veil yet otherwise keep dressing as they did before,
would be more easily approached by members of the public.
87
Parliament of Belgium,
Hand.
Kamer 2009–10, April 29, 2010, nr. 52-
151, 23,
available at
http://www.dekamer.be/doc/PCRI/pdf/52/ip151.pdf.

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JOURNAL OF LAW AND POLICY
an issue that might be better addressed by other means than those
that are repressive.
Moreover, in the European Court of Human Rights, a feeling
of danger can only serve as a ground for the restriction of human
rights if there is an objective foundation for such a feeling.
Therefore, a religious practice cannot be prohibited merely on
account of the fact that a part of the population finds it offensive
or even alarming. The court has made this particularly clear in its
case law, holding that “a legal system which applies restrictions
on human rights in order to satisfy the dictates of public feeling—
real or imaginary—cannot be regarded as meeting the pressing
social needs recognised in a democratic society, since that society
must remain reasonable in its judgement.”
88
Following this line of
reasoning, the argument of subjective safety, in this case with
regard to face veils, cannot serve as a justification for restricting
human rights.
By contrast, the promotion of objective public safety can be
regarded as a legitimate government objective. Yet, any measure
must still address an actual safety concern. Restriction of civil
liberties—here, the right to freedom of religion and expression—
cannot be based on speculation alone. One example of this is in
Arslan v. Turkey
, where members of a religious order were
criminally convicted for wearing distinctive religious clothing in
public. The court held that the convictions violated their freedom
of religion since there was no evidence that the applicants
represented a threat to public order, or that they were involved in
proselytism.
89
Even if the ban on face veils did promote public safety, it
would still be difficult to reconcile the ban’s broad scope—all
public spaces—with the proportionality principle. That principle
requires that a measure restricting a fundamental freedom must
not burden that freedom any more than necessary to achieve its
purpose.
90
In most cases, safety risks can be overcome by
88
Vajnai v. Hungary, 2008 Eur. Ct. H.R., para. 57,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-87404.
89
Arslan v. Turkey, 2010 Eur. Ct. H.R., para. 50,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-97380
.
90
See
supra
note 52–55 and accompanying text for an explanation of the
test applied by the European Court of Human Rights.

FACE VEIL BANS IN THE ECHR
543
measures less restrictive than a ban, such as the obligation to lift
the face veil upon a legitimate request. Public safety only requires
the ability to identify someone when needed rather than
permanent recognizability. Among our interviewees, we found
that women were in general willing to identify themselves to
police or other authorities by lowering their veils. Many
interviewees explicitly stated that they would be willing to
identify themselves to male as well as female officials. The
applicant in
S.A.S. v. France
is no exception. In her application
to the court, she confirmed her willingness “to show her face
when a security check is required” as well as “to lift her veil
when requested to do so for necessary identity checks.”
91
Hence,
the risk that the face veil poses for objective safety in the general
public sphere appears exaggerated, if not unfounded. This
provides support that the ban is too broad and disproportionate to
be justified as a safety measure.
V. BANNING FACE VEILS IN THE NAME OF WOMEN’S RIGHTS?
During the parliamentary debates concerning the French and
Belgian legal bans the discourse emphasizing women’s rights and
women’s dignity was abundant. Strong language was used,
branding the face veil as a “mobile jail,” a “textile prison,” or
the “shroud of freedom.”
92
The underlying assumption of this
argument is that women wearing a face veil are (mostly or
always) forced to do so. In its submission in
S.A.S. v. France
,
the French government stated that
to consider that women, for the sole reason that
they are women, must hide their faces in public
91
Application,
supra
note 29, ¶ 4.
See also
Witness Statement of
Applicant,
supra
note 27, ¶ 30 (“Of course, I accept that—at specific times,
locations, contexts—legitimate public safety issues do require those wearing
full face veils to satisfy security identity checks. At an airport or bank, for
instance, or during heightened localized security threats, I accept that security
identity checks (i.e., lifting my veil to reveal my face) are entirely justified and
reasonable.”).
92
Belgian Parliamentary Documents,
Parl. St.
Kamer 2010-11, nr. 53-
219/4, 5, 9, 13, 14 & 21,
available at
http://www.dekamer.be/FLWB/PDF/
53/0219/53K0219004.pdf.

544
JOURNAL OF LAW AND POLICY
space, is to deny them the right to exist as
individuals in this space and to reserve the
expression of their individuality to the private
family space, since only the men of the family
have the right to see their face, or to an exclusively
female space. Only men, according to such a view,
are entitled to such public individual existence.
Hence there is an absolute, publicly asserted,
negation of equality between men and women.
93
Yet, all available empirical research demonstrates that this
central assumption is erroneous. While the research does not
allow a conclusion as toward whether or not (and if so, how
many) women are being forced to wear a face veil,
94
it does
clearly show that for a significant number of women who wear a
face veil, the face veil is the result of an autonomous choice.
95
All
interviewees describe the decision to start wearing the face veil as
a well-considered and free decision, a personal trajectory of
deepening and perfecting one’s faith. One woman describes her
trajectory this way: “I wore my veil first on the inside before I
wore it on the outside. For me, the veil on the inside is the first
thing. My veil is my chastity, it is my behavior, it is my
politeness, it is my respect.”
96
Another woman expresses how she sees herself and others
who decide to wear a face veil: “A woman who is completely
93
French Government Observations in Reply to Application ¶¶ 86–88,
S.A.S. v. France (Eur. Ct. H.R. May 29, 2012) (translated by the author from
French).
94
In its submissions in
S.A.S
.
v. France
, the French government refers to
the testimony of Sihem Habchi, chair of the organization Ni Putes Ni
Soumises, who describes the testimony of a woman named Karima about the
domestic violence she suffered from her husband, including her being forced
to wear a face veil.
See
French Government Submissions in Response to the
Third Party Interventions at 7,
supra
note 37. This is the only concrete
example in the debates that we found. In the Belgian study, explicit efforts
were undertaken to identify similar cases, yet none were found.
See
BREMS ET
AL., WEARING THE FACE VEIL,
supra
note 8.
95
See THE EXPERIENCES OF FACE VEIL WEARERS,
supra
note
5,
for
reports on empirical research from Belgium, the Netherlands, France, the
United Kingdom, and Denmark.
96
Focus group discussion with Belgian niqabis (on file with author).

FACE VEIL BANS IN THE ECHR
545
veiled, for me she is a woman with strength, with enormous self-
confidence . . . . You need it very much.”
97
In France and Belgium, nearly all women who choose to wear
a veil were confronted with strong negative reactions from their
relatives and friends, sometimes even their husbands. There is no
evidence, in either France or Belgium, of pressure from husbands
or relatives to wear a face veil; while there is recorded pressure
from husbands and relatives to
not
wear a face veil.
By contrast,
forcing
a woman to wear a burqa or niqab
amounts to an impermissible oppression of women, a type of
domestic violence. It is doubtful whether criminalizing and fining
the women in question can be considered a relevant measure to
combat this oppression. This approach treats the oppressed
woman as a perpetrator rather than as a victim.
98
Hence, the idea
of protecting women against the imposition of a face veil cannot
justify a face-covering ban under Article 9 of the ECHR.
Overall, a woman’s agency appears as a strong and
determining factor in her journey toward the face veil. These
women generally see themselves, and each other, as “strong”
women.
99
They experience the ban as a denial of their autonomy
and hence as anti-emancipatory. The applicant in
S.A.S. v.
France
stated this view eloquently:
To be clear, neither my faith nor any man is
dictating to me what I can wear in public:
only
the
State is dictating that to me. Neither my faith nor
any man is restricting my liberty to choose my
own clothing:
only
the State is restricting that
97
Interviews with Belgian niqabis,
supra
note 79, at nr. 19.
98
While the Belgian ban only criminalizes the person who covers her
face, the French law creates a separate offense for forcing another to cover her
face. Yet, that provision does not appear to be applied in practice. One year
after the ban was implemented, the French Ministry of Interior reported that
299 women had received a fine or warning wearing the full-face veil, yet there
was no mention of any application to men.
See
Written Comments of the Open
Society Justice Initiative,
supra
note 39, ¶ 12. Moreover, there is no evidence
(nor even any claim in that sense by the French government in
S.A.S.
) that
such warnings or fines are used to help women who might be victims of abuse.
99
See also
Witness Statement of the Applicant,
supra
note 27, ¶ 15 (“I am
a strong, independent Muslim woman.”).

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liberty. Neither my faith nor any man is
compelling me to obey clothing restrictions under
specific threat of punishment:
only
the State would
punish me if I failed to comply with its clothing
restrictions.
100
It should be noted that the court has ruled that personal
autonomy “can also include the possibility of devoting oneself to
activities perceived as being of a nature physically or morally
damageable or dangerous to oneself,” and that “particularly
serious reasons” are required for state interference.
101
Hence, to
the extent that the face veil is chosen freely, a ban based on the
protection of women’s autonomy does not make sense. Moreover,
research completed after the French ban went into effect shows
that the ban has made women more dependent on their husbands
because they go out less, either to avoid a fine because they cover
their faces or, if they stopped using a face veil, because they feel
uncomfortable.
102
The French government rejects the relevance of
free choice in this debate, stating that the face veil “effaces
persons from public space,” and that “regardless [of] whether this
effacement is desired or suffered, it is necessarily dehumanizing
and can therefore hardly be regarded as consistent with human
dignity.”
103
The government also suggests those women who wear
a face veil suffer false consciousness,
104
having internalized an
oppressive rule.
105
The French government’s former claim, as the
S.A.S. v. France
applicant discusses, is “an abstract assumption
based on stereotyping and chauvinistic logic that does not survive
scrutiny.”
106
Their latter claim is “deeply paternalistic and
100
Id.
¶ 14 (emphasis added).
101
K.A. & A.D. v. Belgium, Eur. Ct. H.R. (Feb. 17, 2005), para. 83.
See also
Pretty v. United Kingdom, 2002 Eur. Ct. H.R., para. 66,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60448.
102
AFTER THE BAN,
supra
note 33, at 8.
103
French Government Observations in Reply to Application,
supra
note
93, ¶ 92 (translated by the author from French).
104
The term “false consciousness” denotes the inability of members of
subordinated groups to recognize their subordination, on account of their
interiorization of the views and values that support this subordination.
105
Id.
¶ 105.
106
Final Observations,
supra
note 53, ¶ 95.

FACE VEIL BANS IN THE ECHR
547
selective as it assumes that non-Muslim French women are not
subjected to cultural influences in their personal choices.”
107
However, the focus on women’s autonomy is not all there is
to say about the face veil from a gender or feminist perspective.
108
From a more radical feminist angle, a practice that makes
women—yet not men cover up—whether voluntarily or not, is an
expression of male dominance.
109
Yet this is just one of many
“cultural” expressions of patriarchy. In the same sphere,
mainstream French and Belgian culture makes women—yet not
men—go to great lengths to be pretty. Applying make-up,
shaving armpits and legs, and wearing uncomfortably high heels
are just some of the expressions of French and Belgian women’s
submission to patriarchy. Eradicating all such expressions is a
valuable feminist project,
110
but this is manifestly not the French
or Belgian government’s project. If it were, it would be difficult
to justify an exclusive focus on face veils
111
while other equally
patriarchal practices, that are immensely more widespread,
remain unchallenged. Hence, this line of reasoning cannot justify
the ban under the auspice of the protection of women’s rights.
In addition, a close reading of the parliamentary debates
surrounding face veil bans reveals that the women’s rights
argument is not necessarily focused on the rights of women who
107
S.A.S Response to the French Government’s Submissions ¶ 30, in
S.A.S. v. France (Eur. Ct. H.R. filed on May 29, 2012) (“Western ideas of
feminine sexuality and fashion are assumed to be unproblematic for gender
equality, despite the feminist tradition that has long challenged such ideas as
oppressive. The law banning face covering purports to promote gender
equality, but does so in an ill-informed and discriminatory way.”).
108
See
Dolores Morondo Taramundi,
Women’s Oppression and Face Veil
Bans: A Feminist Assessment
,
in
THE EXPERIENCES OF FACE VEIL WEARERS,
supra
note 5.
109
Taramundi defines a radical feminist perspective as “a form of critical
theory originating in the second-wave, whose interest lies mainly with social
power structures, and in particular, with patriarchy or sex-gender systems.”
Id.
at 1 n.1.
110
Yet, it might be doubted if criminal law is an appropriate way to
realize such a project.
111
It is estimated that around 1,900 women wear the face veil in France;
in Belgium, between 200 and 270 women.
See
GÉRIN,
supra
note 1, at 29, 74.
This is less than 0.5% of the Muslim minority in these countries.

548
JOURNAL OF LAW AND POLICY
wear face veils. Instead, the argument is that the rights of all
women would be offended by the use of the face veil. The French
government in
S.A.S. v. France
states, “[t]he entire concealing
of the face also affects the dignity of the persons who share the
public space with the fully veiled person and who are treated as
person from whom one has to protect oneself by refusing all
exchange, including visual exchange.”
112
In legal terms, the
question becomes, whether the face veil can be banned as a
symbol
of women’s oppression or lack of respect for human
dignity. Prohibiting symbols is virtually always at odds with
freedom of speech. In
Vajnai v. Hungary
,
113
the European Court
of Human Rights ruled that the application of the Hungarian ban
on communist symbols to someone wearing a red star during a
demonstration violated Article 10 of the ECHR. The court was
mindful of the fact that for many Hungarians, communist symbols
are associated with painful memories
114
but stated, however, that
the symbol did not
exclusively
represent totalitarian rule,
115
nor
had the Hungarian government shown that the use of the star had
generated any danger of violence or disorder, or that there was a
“pressing social need” for the interference with free speech.
116
To
the extent that the face veil can be analyzed as a symbol, the
same reasoning should apply and thus any ban should be struck
down.
Moreover, the empirical findings reveal another major
problem with this line of reasoning—namely that such an analysis
involves a strictly outsider interpretation of the face veil as a
symbol carrying a message. However, as the interviews with
women who wear a face veil show, those women do not intend to
reject the outside world or to send any message. While most
interpretations consider the face veil as a message to the world
saying that “women should cover themselves,” or even that
“women should be submitted to men,” the women themselves do
112
French Government Observations in Reply to Application,
supra
note
93,
¶ 93.
113
Vajnai v. Hungary, 2008 Eur. Ct. H.R., para. 57, http://hudoc.echr.
coe.int/sites/eng/pages/search.aspx?i=001-87404.
114
Id.
at para. 55.
115
Id.
116
Id.

FACE VEIL BANS IN THE ECHR
549
not see it that way. Yet, those women who wear a face veil are
well aware of these interpretations, and find them a source of
major frustration. One woman stated: “It’s really, really
humiliating and degrading for the personality of a Muslim girl, to
hear someone say morning and evening ‘it’s the men who submit
you, it’s the men who oblige you . . . .’”
117
Another interviewee
reported, “That is really something I want for myself. For
me.”
118
For these women, the veil is not a message to the outside
world. It is a very personal thing—a choice they make for
themselves concerning their relationship to God. Proselytizing is
far from these women’s minds. If there is a message, it is
certainly not a normative one, in that it is not about telling others
how to behave. Nor is it a message about gender relations, but
instead about religion. If the face veil is a symbol at all, for the
women wearing the face veil it is a symbol of religious devotion.
At most, the veil could be considered a symbol of chastity. But
chastity to gender inequality is a stretch.
We further analyzed our interviews from a gender
perspective. There was a wide variety of views on gender
relations ranging from very conservative to quite progressive. For
example, one woman expressed her view in this manner, “I do
not want to be equal to a man, I want to remain a woman, I don’t
want to do the work of a woman and a mother and do the work of
a man on top of that.”
119
Yet, other women saw things differently, as illustrated
by the following quotes:
I went to Egypt and met women with a burqa who
were lawyers, doctors. I also want to be like that,
to achieve something more. I can study, I can
work, I can do the same things as any other
woman or man.
120
. . .
At my house, we are two to vacuum, two to
117
Interviews with Belgian niqabis,
supra
note 79, at nr. 21.
118
Id.
at nr. 11.
119
Id.
at nr. 5.
120
Focus group discussion with Belgian niqabis,
supra
note 96.

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JOURNAL OF LAW AND POLICY
prepare meals, two to bathe the children, two to
change the diapers, two to do the shopping, two to
babysit.
121
A large majority of our interviewees were housewives. For
some women, the life of a housewife is the expression of a
commitment to traditional gender roles. Yet, there are others for
whom the life of a housewife is not their first choice; they dream
of a society in which they would not have to choose between a
career and a face veil. Some women who wear a face veil express
assertive emancipated views against traditional role patterns and
against unequal gender practices in the Muslim community.
Clearly, the face veil is not an indicator of its wearer’s approval
of male dominance, let alone of its promotion. With such a gap
between insider and outsider interpretations, it appears that the
face veil is not truly a symbol at all. Instead, for some, it is an
excuse to engage in textbook prejudice and stigmatization.
CONCLUSION
From the perspective of the women concerned, bans on face
veils are counterproductive with respect to all three of the stated
purposes for the ban: (1) they restrict women’s rights instead of
furthering them; (2) they reduce social interaction; and (3) they
expose women to serious safety risks. The French and Belgian
legislators were not concerned with the impact on face veil
wearing women, but rather with the effect on people who are
confronted with women wearing the face veil. People for whom
the sight of a face veil is an affront to women’s dignity, who do
not want to interact with a woman wearing a face veil in shops or
on the street, and who feel unsafe when they come across a face
veil because they associate it with terrorism and fundamentalist
Islam—it is those people whom the ban seeks to protect.
Will the
S.A.S. v. France
judgment force European states to
withdraw their face veil bans? If the European Court of Human
Rights takes empirical reality seriously, it cannot uphold the bans.
Yet the risk remains that the European Court of Human Rights
cannot bring itself to look through the eyes of such a very
121
Id.

FACE VEIL BANS IN THE ECHR
551
different Other, and that it will simply accept the French state’s
justifications based on widely shared assumptions and majority
concerns—much like the French Constitutional Council and the
Belgian Constitutional Court already have done.