THE FREEDOM OF RELIGION OR BELIEF
MASTER THESIS
JANA DRGONCOVÁ
U1241695
Tilburg University
Department of European and International law
Noora Arajärvi, PhD.
Supervisor of Master Thesis
Tilburg 2011
Abstract
Jana Drgoncová, Freedom of religion, Master Thesis, Department of European and International
law, Tilburg University, Supervisor of the Master Thesis Noora Arajärvi, PhD., Tilburg 2011, p.56.
The title of the Thesis is the freedom of religion and belief, in the context of recently adopted
French legal act prohibiting dissimulation of face in public spaces (Loi No.2010-1192, hereinafter:
Act or French law). Even though the provisions of the Act do not explicitly restrict the freedom of
Muslim women to manifest their religion by wearing burqa or niqab, the Act ultimately effects their
religious rights. The question is therefore whether the restrictions imposed by the Act are legitimate
and to what extent the Act complies with the European and International human rights standards.
The Thesis itself will consist of two main chapters.
In the first chapter, I will begin with the essential Republican principle of laïcité, often presented by
French authorities as one of the leading justifications of the eventual restrictions imposed on
religious rights. To illustrate the genesis of current religious policy and the application of French
secularism, I will continue with a well-known 'veil affair', Stasi Commission report and the Law on
secularity and conspicuous religious symbols in schools. Later the attention will be paid to other
relevant documents such as Gerin Report, Advisory opinion of the State Council and the Decision
of the Constitutional Council concerning the ban on dissimulation of face in public spaces.
The outcome of the analysis in first chapter will be answer to several leading questions concerning
the legitimate restrictions on the right of Muslim women to wear burqa or niqab in certain public
spaces. Regarding the relevant domestic legal documents subjected to analysis, I would like to
clarify the purpose of the restrictions, their basis in domestic law and their compatibility or
incompatibility with French constitutional law.
Second chapter will analyze the legitimate restrictions on religious rights and freedoms, as
enshrined in the International and European legal documents. I will start with a short introduction to
the jurisprudence of the European Court of Human Rights and International Human Rights law. The
following sub-chapters will include extended analysis of the Court's jurisprudence concerning the
right to religion, and research on the doctrine of margin of appreciation as possible justification of
the ban. The particular attention paid to this doctrine arises from the vagueness of European
consensus concerning religious questions and especially religious dress codes. The outcome of the
second chapter will include the clarification of Court's findings applicable to eventual future “burqa
cases” submitted to the Court, the list of legitimate restrictions under European and International
Human Rights law and their applicability in the case of the Act, and the final conclusion on the
margin of appreciation.
2
Contents
Introduction..................................................................................................................p.4
1 France: legal aspects of the ban on face-covering veil…..…..…........….…........…p.5
1.1 The French concept of secularism – laïcité................................................................p.5
1.2 The ban of veils in schools (l´affaire du voile)..........................................................p.8
1.3 Gerin report………………………………………………....……............…..........p.14
1.4 Advisory opinion of the Conseil d’État………………....………...........…............p.21
1.5 Decision of the Constitutional Council concerning the Law forbidding
the face covering in public spaces…………………………….........…...................p.25
2 European and International Law: the manifestation of one’s religion.…..........p.27
2.1 European Court of Human Rights and the freedom of religion – introduction.......p.27
2.2 International Human Rights law and the Freedom of religion.......……….............p.28
2.3 The jurisprudence of the European Court of Human Rights…...….………...........p.31
2.4 Margin of appreciation – possible justification?.....................................................p.34
2.4.1 Final remarks on the doctrine of margin of appreciation…..….........……......p.47
Conclusion……………………………...……...……………………….…….............p.49
Literature……………………………..………………………………………...........p.52
3
Introduction
The discussion on ban of overall veil in Europe is quite a recent theme, however there are just a few
countries that crossed the imaginary line of friendly politics attitude and took a legal action towards
the prohibition.
First problem I am going to focus on is a question of French law forbidding veiling of face in public
spaces. This Law was approved by the lower house of the Parliament in July 2010 and eventually
approved by French Senate. It entered into force in April 2011. “La loi d'interdiction du voile
intégral”, as named by some,1 is making France the first European country to forbid such a veil.
The question of imposing the ban on burqa/niqab is complicated not only because of the political
effect it might have but as well because of the legality of such an act. The question at stake is
whether such an act, even if not explicitly directed against the Muslim minority, violates the
International law, European law and French law or not.
The domestic legal aspects of the draft will be researched in the first part of the Thesis.
The compliance with the International law and European law will be clarified in this Thesis, namely
with the provisions are restriction requirements of the Universal Declaration of Human Rights
(UDHR); the International Covenant on Civil and Political Rights (ICCPR); the European
Convention on Human Rights and Fundamental Freedoms (ECHR) and the Charter of Fundamental
rights of the European Union.
Furthermore, the definition of “public places, places open to public or assigned to public service”,
will be clarified in order to assess possible incompatibility of the “Burqa law”2 with the provisions
of the Act, International law and European law. In other words, I would like to find out i.e. whether
public places of religious character – such as Mosques – fall within the definition of the Burqa law.
If the answer is affirmative, what is the possible impact on the freedom of religion or belief?
Eventually, I would like to analyze the case law and possible justifications in the case of presumed
violation of relevant legal provisions. These include for instance margin of appreciation or French
secularism (laïcité).
1 Interdiction du voile intégral: ce que dit vraiment la loi, Le Parisien, Paris 2009,
http://www.leparisien.fr/politique/interdiction-du-voile-integral-ce-que-dit-vraiment-la-loi-14-09-20101068199.php.
2 'Burqa ban' in France: housewife vows to face jail rather than submit, The Observer, London, April 2011,
http://www.guardian.co.uk/world/2011/apr/10/france-burqa-law-kenza-drider.
4
1 France: the legal aspects of the ban on face-covering veil
1.1 The French concept of secularism – laïcité
The public discourse on laïcité has been present in French society over the last 20 years. This
debate was triggered by the decision of junior high school principal in Creil (1989) who banned the
waring of hijab in his school. According to his words, hijab was a form of proselytism and focused
attention onto the differences between students rather than their similarities.3
After this decision, the debate over laïcité in French society was rekindled. New concerns over
female Muslim students were raised. From their point of view, they had two options to choose from
– either unveiling themselves and continue to study, or remain faithful to their religion and see the
scholar future in blurry contours. The question is therefore what does the concept of laïcité embrace
and how far can it go in limiting the rights of, most of all, immigrants, while there is an essential
interest of the French society to integrate these groups well. Furthermore, from the external point of
view, quite a number of decisions issued by French authorities, concerning cases on the restrictions
on right to religion justified by laïcité, seem to be infringing the international and European
standard of the freedom of religion and religious manifestation, as anchored in leading human rights
documents. Can the concept of laïcité be presented as proper justification basis?
The exact meaning of the French word laïcité is usually translated to English as 'secularism'.
Even though these two concepts overlap they are not entirely the same.
French laïcité means strict separation of Church and State and it represents one of the fundamental
principles of the French society. The modern French interpretation of the concept of laïcité means
that nothing connected with religious belief or practice should appear in public life. Laïcité itself is
anchored in the first article of the French Constitution from 1958, stating that “France is an
indivisible, secular, democratic and social republic.”4
According to the spirit of laïcité, French authorities do not take a position in any religion or
religious beliefs, except the case when having practical consequences on its citizens. The
government itself cannot be influenced by any religion and it cannot interfere in the religious life of
its citizens.
3 Chouki El Hamel, Muslim Diaspora in Western Europe: The Islamic headscarf, the Media and Muslims, Citizenship
Studies 6(3):293-308.
4 Constitution Française, Paris 1958, Article 1: “La France est une République indivisible, laïque, démocratique et
sociale.”
5
Furthermore, the jurisprudence of last decades stipulated that state representatives (i.e. providers of
public services) are required to be neutral and they are obliged not to represent publicly any religion
(i.e. wearing of visible religious symbols or engaging in proselytizing activities).
To understand this core concept of laïcité in French society, one would have to trace it back to
16th century when Roman Catholic Church was a major part of the French system of government
and it used this position for its own profit, partially inciting the French revolution in 1789. The
Revolution finished not only by overthrowing the monarchy and its supporters but Roman Catholic
Church equally. The period after the Revolution was marked by Concordad,5 signed between
Napoleon Bonaparte and Pope, positioning the Catholic religion under state control, as well as by
the Declaration of the Rights of Man and the Citizen (Déclaration des Droits de l'Homme et du
Citoyen)6 which in Article X states that “No-one should be disturbed on account of his/her opinions,
even religious, provided that their manifestation does not upset the public order established by
law.”7 Even though the word “laïcité” was not explicitly used in the wording of this Article, it is for
the first time French authorities expressed their will toward state secularism.
The modern concept of laïcité is based primarily on the French law passed in 1905 (Loi relative à la
séparation des Églises et de l'État).8 This law is based on two main principles – the freedom of
conscience and the principle of separation. It obliges French republic not to support financially or
politically any religion, while it supports individual citizens to exercise the religion in private.
Accordingly, the finances from public budget supporting Church are generally suppressed, religious
education at schools is strictly forbidden and no new religious symbols can be placed in public
places.
France of nowadays is bound by number of international documents, which came into force after
the 1905 law. However, the concept of laïcité can be found in none of those. There is no direct
reference to laïcité and the sole relevant provisions concern the freedom of religion and protection
against discrimination based on religion, admitting legitimate restrictions.
5 Camille Froidevaux-Metterie, The Ambiguous position of French Muslim Women: Between Republican Integration
and Religious Claims, University Pantheon-Assas Paris II., p.3.
6 Déclaration des droits de l'homme et du citoyen de 1789, Paris 1789,
http://www.assemblee-nationale.fr/histoire/dudh/1789.asp.
7 Ibid, Article X: “Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne
trouble pas l’ordre public établi par la Loi.”
8 Loi du 9 décembre 1905 concernant la séparation des Églises et de l'État, Paris 1905,
http://www.assemblee-nationale.fr/histoire/eglise-etat/sommaire.asp#loi.
6
Even though the freedom of thought, conscience and religion is protected by the European
Convention on Human Rights (hereinafter: Convention),9 member states can impose restrictions on
the freedom to manifest one's religion, according to the criteria set by the European Court of Human
Rights (hereinafter: ECHR, Court). These limitations should correspond to pressing social need;
they should be proportionate to the legitimate aim and foreseen by law, in other words sufficiently
precise, accessible and foreseeable to allow every person to take account of them.
Furthermore, according to the decisions of the ECHR, there is certain margin of appreciation left on
member states concerning the question of religions. It is worth noting, that ECHR takes into
consideration circumstances of each case in context of the member state in question, taking into
account different legal traditions of states.
In this context, the approach of French authorities, considered to be rather singularity than
exception,10 is reflecting general evolution in Europe in the field of stricter separation of Church
and state.
9 Convention for the Protection of Human Rights and Fundamental Freedoms, Article 9(2), 4th of November 1950,
Rome.
10 Rapport Public 2004: “Un Siècle de laïcité”, Paris 2004.
7
1.2 The ban on veils in schools (“l'affaire du voile”)
As already mentioned, in 1989 local school principal banned wearing of head scarf in his
institution, reasoning his decision by proselytism. It is important to note, that at that time, until the
new millennium, French authorities would express different approach toward the question of laïcité
and freedom of religion. At that time, the concept of laïcité was seen in considerably liberal way,
unlike today. The affair with wearing the headscarves in local school resulted in 1992 decision of
the French State Council (Conseil d'État), stating that the ban on hijab amounted to an infringement
of civil liberties. Subsequently, the French Constitutional Council responded to this decision by an
ambivalent verdict declaring the hijab compatible with laïcité but as a religious sign, worn in a
provocative way, banned. In 1994, the Minister of Education, François Bayrou, issued a circulaire11
implying that any form of ostentatious religious symbols could not be worn in French schools.
It is important to note, that neither the ban nor the circular were legally binding, therefore the
schools were left with certain margin of appreciation. It was not until 2004, after publishing of Stasi
Commission Report,12 when political will of French authorities was expressed in new binding and
much more restrictive law - the Law on secularity and conspicuous religious symbols in schools
(Hereinafter: 2004 Law).13 This law forbids any religious symbols in public schools, included
yarmulke, crosses and headscarves such as hijab. It is necessary to point out, that according to the
2004 Law the religious signs themselves were not forbidden, only those of ostentatious character.
The main reason why the laïcs efforts of French authorities resulted in binding legal act only 15
years after the headscarf affair arose, and almost 10 years after the Bayrou circulaire, remains
unsure.
Some14 might see the enlarging of Muslim communities of immigrants and the manifestation
of their religion as a trigger, because unlike Jews in France, these groups live in enclaves and subcultures and do not seem to assimilate to the French “way of life”.
11 Circulaire relative au port de signes ostentatoires dans les établissements scolaires, Paris 1994,
http://www.notredamereims.com/hgecas/echg/ec4/304/30403.pdf.
12 The Stasi Commission, was a body established by the president of French republic Jacques Chirac on 3 July 2003,
and its main role was to reflect upon the application of the concept of laïcité. It was named after Bernard Stasi, by
then the Ombudsman of the Republic, and it consisted of twenty members from different fields. During its research,
the Commission analyzed contemporary position of 'secularism' in France and the response of various religious and
social groups to potential restrictions concerning religious rights. Commission's conclusions were reported on 11
December 2003 in the Stasi Commission Report and eventually contributed to the introduction of the 2004 French
law on secularity and conspicuous religious symbols in schools.
13 Loi 2004-228 du 15 Mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues
manifestant une appartenance religieuse dans les écoles, collèges et lycées publics.
14 Andrew Borowiec, A Religious symbol of a secular conflict: Muslim headscarves spur French national debate,
Washington Times, 11 January 2004.
8
This reasoning will however remain on a theoretical level, since French government has never
expressed similar concerns explicitly. Even if the level of unemployment and complicated and timeconsuming integration of Muslim communities have not been excluded from the consideration of
French representatives.15
As the Stasi Commission Report states, French republic was established on few essential
principles, including laïcité. All the democratic states respect the freedom of conscience and the
principle of non-discrimination.
Even though French authorities have not proposed any legal definition of the term laïcité,16 Chirac's
Stasi Commission concluded, that laïcité is based on three inseparable values: (1) freedom of
conscience, (2) equality in right to choose one's religion and (3) neutrality of political power. 17 The
freedom of conscience gives an opportunity to every citizen to choose his/ her spiritual and
religious life.
Equality in rights prohibits any discrimination or coercion and neutrality of political power
requires State not to favor any religion and to avoid any interference with spiritual or religious field.
Furthermore, the concept of laïcité is considered to be the “concept of common good”. In other
words, every French citizen should have an opportunity to recognize himself in French republic and
it can only happen if the state itself remains neutral, so that all the citizens can live together in
religious peace and equality.
Even if respecting the conclusions of Bernard Stasi in the Stasi Commission Report, that the
concept of laïcité has been developed gradually, approbated by history and does represent a timeless
value, it is worth noting that there has been a considerable turnover in the approach of French
authorities toward laïcité in the past 20 years. Especially if considering the policy of French
authorities to move numerous restrictions on manifestation of one's freedom of religion from the
field of soft law to the field of hard law, making it present in everyday's life of particular minorities.
According to the concept of laïcité every political intervention in religious matters is illegitimate.
The state shall not impose nor force anyone to adopt religion. In the same spirit, there is neither
mandatory nor prohibited creed. Generally, the freedom of religion comprises the externalization,
association and pursuit of common spiritual goals. The negative component of the definition bans
any anti-religious approach; in the meantime French state does not promote atheistic nor agnostic
approach.18
15 For instance Stasi Commission Rapport 2003, p.2.
16 Maurice Barbier, Pour une définition de la laïcité française;
http://www.diplomatie.gouv.fr/fr/IMG/pdf/0205-Barbier-FR-5.pdf.
17 Stasi Commission Rapport 2003, Paris 2003.
18 Ibid., p.5.
9
What is very important to mention is that the questions of religion or belief are not retained
exclusively in the private sphere, without any possibility to form part of a public discourse. They do
enjoy the social dimension and their capacity to be expressed in public. However, it is to be
distinguished between the freedom to express one's religion in public space, legitimate and essential
in democratic debate, and impingement, that is illegitimate.
The main purpose of laïcité is therefore to leave an individual to choose (or not to choose) his /her
religions freely, change it or renounce it, without interference from any group or community.
This principle is to be applied first of all in schools. The impartial environment as necessity in
educational institutions was actually restated several times by the European Court of Human
Rights,19 however the position of the Court still remains ambiguous and strictly depends on case-tocase circumstances.20 In the context of secularism and educational system, it has to be noted that the
presence of different religions, either expressed materially or as a part of education, can help
students to understand better the position of religion in everyday life of the society. Moreover, it
could develop a critical thinking and prepare them to face reality. Equally, they should be given an
opportunity to express their thoughts on religion.
The concept of secularism analogical to laïcité, is enshrined in several international documents.
First of all I would like to mention the Universal Declaration of Human Rights of December 10
1948 (Hereinafter: Declaration). Even though formerly not binding, it presents bedrock of today's
human right standards. The reasons why Declaration is having such a significant position in current
human rights hierarchy are several. This document sets basic minimum international standards for
the protection of the rights and freedoms of an individual. The fundamental nature of Declaration's
provisions, its foundation in moral and good practice terms, secures the unchallengeable nature of
Declaration as a part of the customary international law.21 Naturally, Declaration fully complies
with the requirements of the international customary law, such as state practice, opinio juris and the
element of widespread States' acceptance of its provisions.22
19 e.g. Dahlab v. Switzerland (App. No. 42393/98) – Primary school teacher who converted to Islam, complained
about the school authorities' decision to forbid her to wear a headscarf while teaching. The ECHR declared this
application inadmissible, holding that the measure had not been unreasonable, since the pupils were aged between
four and eight - an age when children are more easily influenced than older pupils.
20 e.g. Lautsi v. Italy (App. No. 30814/06) – The question of Italian principle of secularism and presence of religious
signs (crucifixes) in the classrooms of public schools. The Court found no violation of Article 2 [Protocol 1], and it
held that the question of religious symbols in classrooms was a matter falling within the margin of appreciation of
the Italian state, since there was no European consensus regarding this issue.
21 Derived from Article 38 (1) of the Statute of the International Court of Justice, that provides a list of the sources of
international law.
22 International and Foreign Legal Research, Researching Customary International Law and Generally Recognized
Principles, Law Library, University of California – Berkeley 2007,
http://www.law.berkeley.edu/library/classes/iflr/customary.html.
10
The provisions of Declaration, unlike international treaties binding State once ratified, do not
require signature or ratification by State to be recognized as a legal standard. Moreover, a country
cannot repudiate a standard of international customary law, as it might a treaty obligation.
Even though the Declaration itself is considered to be a part of customary international law,
some of its provisions are given a relevance of jus cogens. This principle is enshrined in the Vienna
Convention on the Law of Treaties23 and it includes a list of prohibited crimes and internationally
wrongful acts, such as crime of aggression, war crimes, crimes against humanity, piracy, genocide,
apartheid, slavery and torture. Those are to be found either in the Declaration 24 or other
international documents such as Rome Statute.25
Other international documents containing the notion of secularism are e.g. the Convention
against Discrimination in Education,26 International Covenant on Civil and Political Rights and
International Covenant on Economic, Social and Cultural Rights of 1966.
The position of the European Union remains indefinite, even though in the Charter of
Fundamental Rights of European Union it is stated already in the preamble that: “Union (..)
conscious of its spiritual and moral heritage, is founded on the indivisible, universal values of
human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the
rule of law. (..) Union creates an area of freedom, security and justice (..) and contributes to the
preservation and to the development of these common values while respecting the diversity of the
cultures and traditions of the peoples of Europe as well as the national identities of the Member
States (..).”27
I will continue with a detailed analysis of the International and European Human Rights Documents
in the next chapter. What should be pointed out however, is that Charter itself does not enshrine any
provision on the principle of separation between political power and religious or spiritual
authorities. Furthermore, when analyzing the structure of the European Union and provisions of its
legal sources, it might be concluded that Union is not founded on any religion. In other words, the
Union might be called secular. Even though, if polemicizing about the spiritual heritage of the
European states, the Christian tradition is the one prevailing.
23 Vienna Convention of the Law of Treaties, Article 53 states: “For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character.”
24 Universal Declaration of Human Rights, UN GA, 10 December 1948; Article 4 - Slavery and servitude; Article 5 –
Torture, cruel, inhuman or degrading treatment or punishment.
25 Statute of the International Criminal Court, Rome 1998, entered into force on 1 July 2002; Articles 5-8.
26 Adopted by the General Conference, UNESCO, Paris 14 December 1960.
27 Preamble of the Charter of Fundamental Rights of European Union, 2000/C 364/01, Official Journal of the
European Communities.
11
The Convention for the Protection of Human Rights and Fundamental Freedoms protects the
freedom of thought, conscience and religion in the Article 9, and it is exactly this article the
European Court on Human Rights take into account when deciding on cases concerning the concept
of laïcité.
This freedom of thought, conscience and religion consists of two parts – general right to freedom of
thought, conscience and religion - protected by the Article 9(1),28 having an absolute character. In
other words, it cannot be restricted for any purpose. The second part of this right is presented by the
freedom to manifest one's religion, enshrined in the Article 9(2). The freedom to manifest religion
might be restricted by a member state under certain conditions listed in the Article 9(2). These
limitations have to be prescribed by law and 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 the others.29
In general, the approach of the Court toward the right to religion remains reserved. The main
reason of such an ambiguous approach is, that member states have not yet agreed on an uniform
model concerning the relationship between the state and Church, and taking into account the
diversity in traditions of every country, it will not happen in a foreseeable future. Hence, the Court
leaves certain margin of appreciation on contracting parties in question of possible limitations of
this right. However, analyzing the case law, the approach of the Court seems rather narrow, and it
tends to protect only those manifestations which are objectively necessary outward displays of the
religion or beliefs.30
In the Kokkinakis case,31 for instance, the Court approved the two-folded construction of the
freedom of religion, emphasizing the right of a person to manifest his or her religion.
The applicants in this case, Mrs. and Mr. Kokkinakis, were members of Jehova Witnesses religious
group, manifesting their religion in several ways, including calling at houses to persuade occupiers
to join them. However, in Greece proselytism is a criminal offence and misfortune made them call
upon a wife of Orthodox priest. The Court found applicants guilty of proselytism and sentenced
each of them to four months' imprisonment, convertible into a pecuniary penalty.32
28 Jacobs, White & Ovey, The European Convention on Human Rights, Fifth Edition, Oxford University Press, Oxford
2010, p.409.
29 Convention for the Protection of Human Rights and Fundamental Freedoms, Article 9(2), 4th of November 1950,
Rome.
30 Jacobs, White & Ovey, The European Convention on Human Rights, Fifth Edition, Oxford University Press, Oxford
2010, p.410.
31 Kokkinakis v. Greece (App. No. 14307/88), ECHR, Judgment of 25 May 1993, para. 31 : “While religious freedom
is primarily a matter of individual conscience, it also implies, inter alia, freedom to “'manifest [one's] religion'”.
Bearing witness in words and deeds is bound up with the existence of religious convictions.”
32 Ibid.
12
I would like to emphasize several conclusions of the Strasbourg Court.
First of all, in the part of Court's decision concerning general principles the Court stated that
“(..) Article 9 (...) recognizes that in democratic societies, in which several religions coexist within
one and the same population, it may be necessary to place restrictions on this freedom in order to
reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.”33
Applying the principles listed in Article 9(2) – grounds of limitations – the Court concluded that the
Greek measure against proselytism was prescribed by law within the meaning of Article 9(2)34 and
it was in pursuit of legitimate aim (the protection of the rights and freedoms of others). The
limitation based on the necessity in a democratic society was found illegitimate. The main reason
was that Greek courts failed to sufficiently specify in what way the accused had attempted to
convince his neighbor by improper means. Using the wording of the Court, the applicant’s
conviction was not justified in the circumstances of the case by a pressing social need, hence the
contested measure was not proportionate to the legitimate aim pursued, in other words, was not
necessary in a democratic society.35
Particularly interesting in the dissenting opinion of judge Valticos and partly dissenting opinion
of judge Martens, clarifying the character and the definition of proselytism. The judge Martens
concludes that Article 9 does not allow member states to make it a criminal offence to attempt
inducing somebody to change his religion, because freedom of religion explicitly include freedom
to change one's religion and beliefs. Secondly, he considers it to fall outside the powers of state to
interfere between proselytizer and proselytized and even the “public order” argument cannot justify
the use of coercive State power in this field.36
33 Ibid. para 33.
34 Ibid. para. 41. Furthermore, concerning the alleged violation of the Article 7, the Court concluded that the Greek
law against proselytism was sufficiently precise and clear (§51).
35 Ibid. para. 49.
36 Partly dissenting opinion of judge Martens (§15), Kokkinakis v. Greece (App. No.14307/88), 25 May 1993.
13
The 2010-1192 Law known as “Burqa law” appeared only after several inevitable steps taken by the
French government. The process resulting in passing the aforementioned law consisted of several
steps necessary in order to ensure its compliance with the constitutional law, international and
European human rights law. French authorities have developed certain attitude toward the right to
manifest one's religion, 'ostentatiously' performed, most of all, by Muslim immigrants. However,
the political will to apply further restrictions on religious rights, even though presumably justified
by legitimate aims, has never been as ardent as it is nowadays. From the very beginning of mandate
of the current French president Nicolas Sarkozy, it was quite evident that the former social policy
concerning 'problematic' minorities was going to be modified. The numerous political debates
resulted in several relevant documents.
1.3 Gerin Report
On 22 June 2009, the president of French republic Nicolas Sarkozy held a speech before the
French parliament stating that burqa will not be welcome on the territory of French republic. In
words of the president: “We cannot accept in our country women imprisoned behind a wire, devoid
of any social life, deprived of their identity. Burqa is against our values, against the dignity of
women.”37
Based on the presidential speech, on 23 June 2009 the “Conférence des Présidents de
l'Assemblé Nationale” (Hereinafter: Conference) created “Mission d'information sur la pratique du
porte du voile intégral sur le territoire national” (Hereinafter: Mission),38 presided by socialist
deputy André Gerin. After six months of preparatory works, the “Gerin Report” was published,
providing a detailed analysis of current situation concerning the wearing of Islamic veils such as
burqa or niqab. The report offered several measures allowing the restriction on veiling within the
territory of France. The limitations proposed by the Gerin Report go much further than subsequent
legal acts passed by the French National Assembly. The measures drafted in the Gerin Report reflect
republican values protected by the establishing documents and advocate expanded integration
conditions.
37 Sarkozy:“La burqa n'est pas la bienvenue”, Le Figaro, Paris 2009,
http://www.lefigaro.fr/politique/2009/06/23/01002-20090623ARTFIG00055-sarkozy-la-burqa-n-est-pas-labienvenue-.php.
38 Translated by some authors (i.e. Mullahy) as “Parliamentary Commission on the wearing of the face veil”. However,
there are certain differences between the “mission d'information” and “commission d'enquête” as explained in the
Report itself (p.20).
14
Purpose of these limitations would be to restrict the access to French citizenship, since according to
the Gerin Mission the wearing of burqa or niqab may reflect a failure to comply with essential
republican values and might result in refusal of citizenship or residence status.39
The importance of Gerin Report lies within its political value and capability to influence eventual
legislative process concerning general ban on Islamic veils. Even though presided by the member of
Communist party,40 the Mission in fact mediated the opinions of the head of French executive
branch. Furthermore, the Report offers profound analysis of current religious rights of Muslim in
France and their impact on coherence of French society, proposing certain conclusions which were
eventually employed in the legislative process. Moreover, the Conference created the Mission for
particular reasons, complying with the requirement of French government to analyze important
issues.41 Summarizing the aforementioned, whether or not the final version of the Act reflects the
conclusions of Gerin Report, it presents an inevitable step in relevant legislative process providing
necessary interdisciplinary background of religious rights in France.
The Report exposed several findings concerning Islamic veil in the context of French society.
According to the conclusions of the Mission, the wearing of integral veil intervenes with three
essential republican values – liberty, equality and fraternity. The wearing of veil such as burqa or
niqab is intolerable violation of the principle of liberty and the principle of dignity of women. It is
negation of equality between sexes, it expresses a will to exclude women from a social life and it
rejects a common will to live together (the concept of “vivre ensemble”).42
The Report itself is divided into several parts analyzing the cultural background of women
wearing burqa, religious practices, countries influenced by these practices, their presumed violation
of French republican values and at the end it offers several proposals for future resolutions
concerning for instance general ban on wearing of integral veil.
Starting with the background information, the Mission concluded that wearing of
burqa/niqab is a pre-Islamic practice not presenting a religious prescription, participates in action of
extremist movements and nowadays presents a challenge for numerous countries. Even though of
ancient origin, the wearing of burqa/niqab has developed recently.
39 Siobhan Mullahy, Civic Integration, Migrant Women and the Veil: at the Limits of Rights?, The Modern Law
Review, Oxford 2011, p.2.
40 Part of minority Left wing of 228 members to 343 of Right wing block of Assemblé Nationale, electoral period
2007-2012;
http://www.assemblee-nationale.fr/elections/2007/index.asp.
41 La Conférence des Présidents, Assemblée Nationale, Paris 2010,
http://www.assemblee-nationale.fr/connaissance/conference.asp
42 Rapport D'Information sur la Pratique du Port du Voile Intégral sur le Territoire National, 26 Janvier 2010, p.13.
15
Unfortunately, according to the Report, the development resulted in a protection of different values
– while at the beginning; the veiling of women had aimed at protecting women against a violent
society, later it changed to materialization and discrimination of women.
One could wonder why the French authorities pay such an efforts to ban integral veil when the rate
of integrally veiled women is, according to the French Ministry of Interior, only about 1900 (50%
residing in L'Île de France).43
However, even according to CFCM (Conseil Français du Culte Musulman),44 the wearing of
integral veil is not a religious prescription but rather religious practice based on a minority opinion
or extreme practice, ensuring the authorities that veiling is not indisputable, it is a marginal practice
and currently presents more of a political radicalism.
The Report also analyzed the situation in other European states. The Mission concluded that veiling
of women is a phenomenon rather absent in the countries of central and Eastern Europe, such as
Czech Republic, Bulgaria, Romania, Hungary, however it can be considered as marginal practice in
Germany too. The societies influenced by this problem are Sweden and Denmark. The societies
“feeling their identity and their liberties are being challenged”45 are Belgium and Netherlands,
where the debate over necessity of legislative measures, political and jurisdictional plans are being
presented.
The comparative study on secularism in various European states, might clarify the extensive
margin of appreciation given by the ECHR to particular states when restricting the freedom of
religion. In Netherlands, for instance, the analogical concept to French laïcité (secularism) means
that State stays neutral and treats all the religions in an equal manner. Even though the definition is
the same, the application in Netherlands is different. Unlike in France, laïcité in Netherlands means
that all the religions have equal right to be manifested in public. The separation between State and
Church has never signified hat public spaces have to remain free of any religious signs. The
question of veiling was part of an intensive debate in 1985 (similarly to France), when local
authorities prohibited young Muslim girls to cover their head in the public school.46 Nowadays,
general principles of freedom of religion are applied only in public schools, whereas they can be
restricted in private schools.
43 Ibid. p.27.
44 Le voile intégral n'est pas une "prescription religieuse", selon le CFCM, L'Express, Paris 2009,
http://www.lexpress.fr/actualite/societe/le-voile-integral-n-est-pas-une-prescription-religieuse-selon-lecfcm_794536.html.
45 Rapport D'Information sur la Pratique du Port du Voile Intégral sur le Territoire National, 26 Janvier 2010, p.7377.
46 Laura Barnett, Freedom of Religion and the Religious Symbols in the Public Sphere, Law and Government Division,
Parliament of Canada, Ottawa 2008.
http://www2.parl.gc.ca/content/lop/researchpublications/prb0441-e.htm.
16
However, the ostentatious religious signs exposed in a public sphere rarely cause problems, in
contrary, the Equal Treatment Commission reiterated, that a veil might be forbidden in public
spaces only under very restricted conditions, such as public security or incompatibility with official
uniforms.47 Other countries, such as UK, have status of countries confronted with communitarian
escalation.
All these factors have to be taken into consideration, when trying to conclude and foresee the
future decisions of the ECHR on state restrictive measures concerning freedom of religion. The lack
of consensus on religious dress codes and religious signs worn in public spaces among the Council
of Europe's states, contributes to wider margin of appreciation. Another fact worth noting is a
current development of the practice of veiling in Europe. In my opinion, the higher numbers of
states fearing the challenge of their identity and liberties, the more restrictive measures are to be
performed. Especially when facing escalating political insecurity outside the boundaries of the
European Union and the Council of Europe, and fearing eventual terroristic attacks.
The second part of the Report positions the practice of veiling in opposition to French republican
values – laïcité, liberty, equality between sexes and fraternity.
Starting with the concept of laïcité, the Mission grounded its conclusion on the decision of the
Constitutional Council from 19 November 2004 on European treaties. In this decision the Council
underlined that the European Convention on the protection of Human Rights and Fundamental
Freedoms expressed support of laïcité by recognizing state's wide margin of appreciation to define
the most appropriate measures to reconcile the freedom of religion and the principle of laïcité
itself.48
Concerning the liberty of a person, the Mission inquired into position of minors pressurized to
wear Islamic veils, in other words to integrate the idea that submission to males is tolerable and
indisputable. Even though the problem of pressurizing under-aged girls to wear the Islamic veil, the
number is negligible (according to the Report only about 1% of veiled girls are under 18).
The equality between sexes is a constitutional principle, enshrined already in the 1789
Declaration of the Rights of Man and Citizen and the preamble of the 1946 and 1958 Constitution,
all forming part of a binding block of constitutional rights.49
47 Rapport D'Information sur la Pratique du Port du Voile Intégral sur le Territoire National, 26 Janvier 2010, p.77.
48 Décision du Conseil Constitutionnel No. 2004-505 DC du 19 Novembre 2004 sur les traités européens, p.173.
49 Since its 1981 decision (Décision No. 80-127 DC du 20 Janvier 1981), the Constitutional Council consider these
sources to be a part of the binding positive law.
17
The principle is accordingly recognized by the international and European legal sources, such as the
Convention,50 Treaty of Lisbon, Universal Declaration of Human Rights, and i.e. CEDAW.51 The
extensive protection of the equality between sexes among European states presupposes a wide
support of possible ban on integral veil in France. For this reason, even the President of French
republic, initiating the legislative process concerning the ban on integral veil, founded his
arguments mostly on the protection of equality of women and their dignity.52
The last republic value, violated by wearing the integral veil, is fraternity. The Mission concluded
that purpose of masking one's face results in excluding the others and refusing the concept of “vivre
ensemble”.53
The Mission concluded unanimously that wearing of integral veil opposes the republican values,
hence it recommended to the government to analyze the legal conditions in which the wearing of
integral veil in public spaces could be subjected to a general prohibition.
The Mission itself researched the compatibility of the ban on burqa/niqab with the Convention and
French Constitution under three legal foundations – the principle of laïcité, the dignity of a person
and the protection of public order. The French version of secularism was not considered to be
sufficient basis for a general ban on wearing a veil in public spaces.54
The dignity of a person is a concept abandoned by the Convention and partially clarified by the
jurisprudence of the Court, albeit not concerning the veiling of women.55 Analogically to the
jurisprudence, the Court would most probably give preference to the autonomy of a woman. In
other words, if woman chooses voluntarily to wear burqa or niqab, there are no legal measures to
prevent her from this decision. For these reasons, both – the concept of laïcité and the dignity of a
person, cannot be taken as justifications for a possible general ban on wearing of veil in public
spaces.
The third and the most complicated foundation, is the concept of public order, enshrined in the
Article X of the Declaration of the Rights of Man and the Citizen, which presents establishing
constitutional concept.
50 Ratified by France in 1974.
51 Ratified by France in 1983.
52 Sarkozy: “La burqa n'est pas la bievenue”, Le Figaro, Paris 2009.
http://www.lefigaro.fr/politique/2009/06/23/01002-20090623ARTFIG00055-sarkozy-la-burqa-n-est-pas-labienvenue-.php.
53 Within this concept the veiling of one's face is considered to be a form of “incivility” and the attack on French “code
social” - social consensus on implicit values existing since 1789.
54 The Mission used an example from the jurisprudence of the Court – Aktas v. France (2009): concerns a young girl
excluded from the high school after refusing to take off her veil during gymnastics class. The Court found the
decision of the principal legitimate.
55 Rapport D'Information sur la Pratique du Port du Voile Intégral sur le Territoire National, 26 Janvier 2010, p.175.
18
However, the framework of 'public order' has never been defined by the Constitutional
jurisprudence, only by the Conseil d'État, which identifies it as security, tranquility, public health
and public morality.56
The covering of one's face, as a threat to public order, could be based on fact, that the covering
of face did not permit an immediate identification of a person. Accordingly, in 2005, the Conseil
d'État found it legal to reject awarding visa to a woman who had refused to take off her foulard and
proceed to the identity control.57 Moreover, the Conseil d'État's jurisprudence confirmed the legality
of a circular imposing the identity photography to be made with naked head,58 the condition later
reiterated by the Court.59
56
57
58
59
Ibid. p.178.
M.El Morsli, Décision No.264464, CE 7 Décembre 2005.
Ordonnance du Juge des Référés du 6 Mars 2006.
Mann Singh v. France (Application No. 24479/07): The Applicant, Sikh, required to remove his turban for his
driving license's photography. The European Court of Human Rights found that the French requirement interfered
with Mann Singh's freedom of religion, but that it was provided by law and served the legitimate aim of ensuring
public safety. In this context it was necessary for the authorities to be able to identify persons under road traffic
regulations to check whether someone was authorized to drive. Referring to earlier case law, it held that the details
of such national arrangements fell within a state's margin of appreciation.
19
French Constitutional Council expressed the actual issue hidden behind the justification of public
order – the jurisprudence of all the relevant bodies is based on the ability to identify a person, in
order to eliminate a potential threat. However, even if public order needs to have the ability to
recognize identities, this control cannot be permanent.60
Notwithstanding the partial conclusions, the Mission avoids providing one clear conclusion on
whether or not the general ban on wearing the Islamic veil in public spaces would be in compliance
with French, international and European law. The final outcome of the Report, apart from several
concepts and proposals, is therefore a recommendation to submit the draft of the Law forbidding the
covering of one's face in public spaces to the Conseil d'État, to obtain an advisory opinion. In other
words, Gerin's Mission left the decision on the Council, avoiding a possible opinion conflict.
60 Rapport D'Information sur la Pratique du Port du Voile Intégral sur le Territoire National, 26 Janvier 2010, p.178181.
20
1.4 Advisory opinion of the Conseil d'État
Étude relative aux possibilités juridiques d'interdiction du port du voile intégral/ la loi du
2010
Following the Gerin Report, in January 2010, the Prime minister of France, François Fillon,
requested the Conseil d'État (Council of State) to analyze the legal aspects of ban on wearing of
integral veil. Even though there has been quite a controversial debate concerning the scope of the
question and the possible impact of the study on Muslim minority, according to its statute, the
Conseil d'État has full power to provide a legal advice on demand of the French government, 61
without exception to controversial issues touching upon religious questions.
According to its analysis, the Conseil d'État has not found any legal basis to support the general
ban on integral veil. Eventually, the Conseil d'État analyzed other possibilities, including legal
restrictions of the face-covering veil. However, even if applying the broader approach, in practice it
might have clashed with the freedoms of individuals guaranteed by the French Constitution and
international and European treaties and conventions to which France is a party.
First of all, Conseil d'État itself rejected the concept of laïcité as basis for general prohibition of the
integral veil. From the reasoning of the Council, laïcité applies to public institutions, and in the case
of society or individuals, it can have direct effect only by virtue of specific demands concerning
certain public services (for instance educational establishments).62
Secondly, public security could not be taken as a basis for a general ban on the integral veil because
the authorities have not proven any particular public security problems to be associated with the veil
as such.
Subsequently, the Conseil d'État analyzed whether equality between sexes could be accepted
as a possible purpose of eventual prohibition of integral veil.
The equality between sexes is one of the founding principles of French society, however in this case
it is practically unenforceable. It could be invoked by a woman compelled to wear such a veil and
who denounces its discriminatory character. Those women, who use the veil voluntarily, cannot be
pressurized not to do so. Otherwise, the state would have to intervene in every situation which
appears to be discriminatory toward members of the opposite sex.
61 Le Conseil d'État et la Jurisdiction Administrative, Conceiller,
http://www.conseil-etat.fr/cde/fr/conseiller/.
62 Study of possible legal grounds for banning the full veil, Summary, Conseil d'État, p.2,
http://www.conseil-etat.fr/cde/media/document/RAPPORT%20ETUDES/resume_presse_anglais.pdf.
21
In other words, every person has a right to choose a particular status of her or himself or particular
behavior that does not have to conform to this principle.
The Conseil d'État therefore examined the possibility to establish a general ban on concealing the
face in public space. For this purpose, the Conseil d'État analyzed the concept of public order. The
traditional components of so-called 'substantive' dimension of public order are public security,
public peace and public health.63 The other so-called 'non-substantive' part of public order
comprises i.e. public morality, “bon ordre” or respect for human dignity.64 However, French
authorities have never proposed a legal definition of the 'non-substantive' dimension of public order
and it rather represents philosophical concept arising from French political history. It is based on the
essential republican traditions of ethic order and 'vivre ensemble'. Notwithstanding its importance,
the 'non-substantive' dimension of public order is not itself sufficient basis for the prohibition of
integral veil, or concealing the face in public space.
In contrary, the public order together with its substantive dimension comprising public security,
public peace and public health, was considered sufficient basis for state measures restricting certain
rights of French citizens by forbidding veiling of face in public spaces.
For this reason, the Conseil d'État proposed three types of measures. First, strengthening and
extending the special police powers, granting right to ban the concealment of the face in any place
open to public where there was a specific threat to public policy (bank, jeweler, etc.).
Second, the prohibition to wear any clothing or accessory having the effect of covering one's face in
a manner disallowing identification of the person; either because of the protection of public order,
that is threatened by this act, either because the identification seems to be necessary for the access
or circulation in certain places and for the accomplishment of certain measures.
Concerning the sanctions, the Conseil d'État emphasized the need to reinforce the repressive
measures toward those individuals who compel others to cover their face, resulting in effacing their
identity in public space.65
Concluding the findings of the Conseil d'État, only public security and the need to combat fraud 66
could provide a basis for a ban on integral veil (context of covering face in public spaces).
63 Étude relative aux possibilités juridiques d'interdiction du port du voile intégral, Rapport adopté par l'Assemblée
générale plénière du Conseil d'État le jeudi 25 mars 2010, p.24.
64 Projet de loi interdisant la dissimulation du visage dans l'espace public : Dissimulation du visage dans l'espace
public, les femmes, la République,
http://www.senat.fr/rap/r09-698/r09-6981.html.
65 Ibid. p.8.
66 According to French constitutional case law, public order has a specific purpose of combating fraud, which may
involve preventing people from concealing their appearance or demand them to reveal their identity.
22
Current legal system in France already contains several provisions concerning the prohibition to
cover one's face. First group of individuals banned from wearing a face-covering veil are public
employees while exercising their functions.
Second group is represented by persons in public educational establishments (employees as well as
students). Apart from these two major fields of protection of the French 'secular' system, we might
find other places such as private companies, where employees and other individuals might be
subjected to the ban on wearing integral veil, if ordered by head of such a company and if it hinders
the operation of an establishment.67
We might also find some legal provisions based on public security and anti-fraud considerations
requiring people to unveil their face. For instance, when being submitted to identity check or having
the identity documents made, performing certain official formalities e.g. marriage, voting,
collecting children from school, entering certain places where security check is required – such as
the identification at the airport, accessing certain places or services, when identity check is based on
objective criteria, for instance serving alcohol in bars.
Concluding the Advisory opinion of the Conseil d'État, there might be introduced further
restrictions on veiling that could be justified only in limited context of public order and public
security. Even though the Advisory opinion clearly represents current political views of the French
authorities with an apparent aim, the National Assembly nonetheless approved the legislation
imposing the ban on wearing a face-covering veil in public spaces.
In the Exposé des motifs (explanatory memorandum), accompanying the Projet de Loi, the Prime
minister of France emphasized that French society's social model is based on respect of dignity of a
person and on the openness to each other, with no distinction to origin, sex, religion, or opinion.
However, these values cannot be guaranteed if one refuses to show his/her face to the others.68
Eventually, the Exposé des motifs touches upon several issues such as founding concepts of the
French society including social contract and 'vivre ensemble'. It continues with rather interesting
notion on human dignity, clarifying that face-veil does not concern only the dignity of the woman
wearing it, but as well the dignity of persons who share the public space with her. Furthermore, it
clarifies the definition of public space, as public highway and all premises open to public or used
for the provision of a public service.69
67 Étude relative aux possibilités juridiques d’interdiction du port du voile intégral, Paris 2010,
http://www.conseil-etat.fr/cde/fr/rapports-et-etudes/possibilites-juridiques-d-interdiction-du-port-du-voileintegral.html.
68 Exposé des Motifs, Projet de Loi interdisant la dissimulation du visage dans l'espace public, Assemblé Nationale 19
May 2010, p.2-3.
69 Ibid., p.3.
23
Taking into account that the Conseil d'État recognized potential conflict of the proposed law and
both French constitutional law and the European Convention on Human Rights, the legislation was
referred to the Conseil Constitutionnel (Constitutional Council). The role of this institution was to
decide on the constitutionality of the relevant legal act. The Constitutional Council held the
proposed act being constitutional. However, it emphasized that veiling of face cannot be restricted
in places of worshiping open to public. In other words, it would constitute a violation of religious
freedom enshrined in the Article X of the Declaration of the Rights of Man and the Citizen of
1789.70
70 Décision No.2010-613 DC du 7 Octobre 2010, Loi interdisant la dissimulation du visage dans l'espace public,
Conseil Constitutionnel, Paris 2010.
24
1.5 Decision of the Constitutional Council concerning the Law forbidding the face covering in
public spaces
The last chance for the opposition to reverse the adoption of the 2010-1192 Law resulted in act
questioning the compatibility of the Law with constitutional law.
The constitutionality of the Law forbidding the covering of face in public spaces was challenged
before the Conseil Constitutionnel, emerging into decision of 7 October 2010. The Constitutional
Council analyzed the wording of Articles, and as already mentioned, offered more precise definition
of public spaces.71 The public highways are streets and roads open to circulation. The spaces open
to public include all the spaces, public or private, where anyone can enter freely (even if a fee is
requested i.e. in the concert hall, restaurant or library). The places assigned to public service are,
among others, tribunals, city halls, stations and hospitals.72
The Council emphasized that the ban does not apply if the veil is prescribed or authorized by
legislative acts, if it is justified by health or professional motives or if it concerns sport clothing or
disguise for various celebrations or traditional or artistic manifestations. The Council used the
Declaration of the Rights of Man and of the Citizen of 1789 to clarify that religious freedom might
be restricted, if its manifestation violates public order established by French law. The Council
approved the idea of the legislative branch that veiling of one's face might constitute a danger to
public security; and women who veil their face, voluntarily or not, are put into inferior - unequal
position incompatible with constitutional principles of liberty and equality. My question would be in
a negative delimitation – what would be the impact on the other European countries, not forbidding
veiling of women? The equality and liberty are bedrocks of all the modern European democracies.
If they do allow the veiling of women, does it mean they support inequality between sexes? The
decision of the Constitutional Council was therefore logical – the prohibition to cover the face in
public spaces, except the religious places open to public, is compatible with the French
Constitution.
71 “Public highways, places open to public or places assigned to public services (for instance public transport).”
72 Eolas, Cachez moi cette loi que je ne saurais voir, Journal d'un Avocat, 13 Octobre 2010.
25
This decision has been broadly criticized by French jurists.73 One of the main contentious issues is,
that the Council does not verify whether the covering of face constitutes danger for the public
security susceptible to justify a general prohibition. Furthermore, it does not verify whether a nonveiling of face constitutes a minimal requirement for life within French society; and whether being
put, voluntarily or not, to a position of inferiority is itself incompatible with the constitutional
values of liberty and equality. Another reproach could arise when balancing the freedom of religion
and equality between sexes – does it mean that, according to the Council's decision, that the
protection of liberty and equality of women preponderates the exercise of their freedom of religion?
73 La Constitutionnalité paresseuse de l'interdiction de la Burqa,
http://avocats.fr/space/laure.gaudefroy-demombynes/content/_28516f40-3ec8-448f-81a2-ffb26d30e679;
http://dinersroom.eu/5403/la-constitutionnalite-paresseuse-de-linterdiction-de-la-burqa/.
26
2 European and International law: the manifestation of one's religion
2.1 European Court of Human Rights and the Freedom of religion - Introduction
There are several justifications of interference with religious freedom enshrined in the Article 9 of
the Convention. The interference has to be prescribed by law, directed at legitimate aim and
necessary in a democratic society. Relevant case law specifies the standards of Article 9 and state
practice in this field.
The interference with religious freedom (manifestation of religion, as anchored in Article 9(2)) can
be justified if the state action is prescribed by law as a form of due process notice requirement.74
As the Court stated in Larissis “The law in question must be both adequately accessible to the
individual and formulated with sufficient precision to enable him to regulate his conduct.”75
The second justification – legitimate aim – is enshrined in the Article 9(2), and indicates that state
may interfere with religious freedom in the interests of health and safety, public order, morals, or
the protection of rights and freedoms of others.
The third justification on basis of necessity in a democratic society, is based on Court's case law,
which affirmed several times that freedom of religious manifestation is a fundamental feature of a
democratic society, where governments have a duty to ensure religious pluralism. 76 In this light,
Article 9(2) provides balancing test that compares legitimate aims of the government and the need
for preserving religious freedom in a democratic society. Furthermore, it is the Court that must
“determine whether the measures taken at the national level are justified in principle and
proportionate” to the government's concern.77
74 Larissis and others v. Greece, (App.No.140/1996/759/958–960), ECHR, Judgment of 24 February 1998, para.40.
75 Ibid.
76 Kathryn Boustead, The French Headscarf Law before the European Court of Human Rights, Journal of
Transnational Law and Policy, Vol.16.2007, p.180.
77 See note 31, para.47.
27
2.2 International Human Rights law and the Freedom of religion
Searching for the answer to what extent the 2010 law is in compliance with international human
rights law, it is rather useful to analyze the attitude of the international community toward the past
France's legislation concerning religious freedom and its acceptance of the obligations set by the
international conventions.
Even though there is no sharp general consent of European states concerning the religious freedom
and its limitations, the position of France is rather particular. France's restrictions on wearing of the
veil have already attracted criticism from international community, especially from UN human
rights bodies.78 The criticism concerns most of all the proposal of extended integration conditions.
Furthermore, France expressed its attitude toward the international human rights documents by
several reservations to minority and cultural rights provisions – for instance article 27 of the
International Covenant on Civil and Political Rights79 and article 30 of the Convention on the
Rights of the Child.80 France reasoned the reservation by equality before law, indivisibility and
secular character of the republic. However, the Human Rights Committee and Committee on the
Rights of the Child asked France to withdraw its reservations. France's position didn't meet the
understanding because of the negative delimitation of minority rights protection. The Human Rights
Committee for instance stated that abstract principle of equality before law and the prohibition of
discrimination do not represent sufficient guarantees for the equal and effective enjoyment of
minority rights.
The French 2004 law on religious symbols at schools similarly attracted the attention of
UN human rights bodies. The Committee on the Rights of the Child concluded that French
government should find alternative means to protect the 'secular' character of public schools and
ensure that children expressing their religious beliefs are not excluded or marginalized from the
school system. Furthermore, the Human Rights Committee expressed the view that the principle of
laïcité would not require a prohibition on the wearing of common religious symbols.81
78 Siobhan Mullahy, Civic Integration, Migrant Women and the Veil: at the Limits of Rights?, The Modern Law
Review, Blackwell Publishing, Oxford 2011, p.44.
79 “(..) In the light of article 2 of the Constitution of the French Republic, the French Government declares that article
27 is not applicable so far as the Republic is concerned.”
http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en#EndDec.
80 Children's Rights: France, Library of Congress, Washington 2011,
http://www.loc.gov/law/help/child-rights/france.php.
81 Siobhan Mullahy, Civic Integration, Migrant Women and the Veil: at the Limits of Rights?, The Modern Law
Review, Blackwell Publishing, Oxford 2011, p.45.
28
The CEDAW Committee went a step further requesting the French government to provide detailed
data on the educational achievements of minority and immigrant girls on all the levels, 82 which they
eventually failed to impart. Moreover, the CEDAW Committee expressed preoccupation concerning
immigrants living in France being discriminated i.e. in access to education.83 The Special
Rapporteur on freedom of religion or belief commented on the French 2004 law equally,
emphasizing that although the law was intended to be applied to all the religious groups, it affected
notably the people of Muslim background. Other concerns included the question of minors who had
freely chosen to wear a religious symbol as part of their belief,84 stigmatization and radicalization of
population.85
The Special Rapporteur furthermore emphasized the necessity to secure both positive and negative
aspects of the freedom to manifest one's religion or belief – i.e. freedom to express one's religion
and freedom not to be exposed to any pressure from State authorities or State institutions to practice
religion against one's will.86
When analyzing the attitude of the Special Rapporteur and international human rights bodies
generally, especially in the case of religious freedom, the will of strict classifications and restricted
boundaries imposed on States is missing. The international community leaves the decision on caseto-case basis. Concerning the wearing of veil in public schools, any restrictions imposed by State
must be necessary, should not be applied in a discriminatory manner “and they must be directly
related and proportionate to the specific need on which the restrictions are predicated.”87
In the case of protection of secular school environment, the restrictions on the freedom of religion
or belief are aimed at protecting the neutral environment and the formulation of ideas of those
vulnerable. For this reason the public scrutiny might have stronger effect on the relevant laws. In
the case of wearing a face-covering veil in public spaces, the protected interest of the State and
necessity of restrictive measures must be balanced.
82 CEDAW Committee Concluding Observations: France, CEDAW/C/FRA/CO/6, para.21
83 Ibid. para 22.
84 Once of the leading arguments of the French government was that the law aims at protecting the autonomy of
minors who may be pressured or forced to wear a headscarf or other religious symbols.
85 Framework for Communications, Special Rapporteur on Freedom of Religion or Belief, Office of the United
Nations High Commissioner for Human Rights, UN 2011,
http://www2.ohchr.org/english/issues/religion/III4.htm.
86 Report of the Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, UNGA, 15 December 2010,
para.57.
87 Ibid. Para.58
29
Analogically, the test of non-discriminatory and proportionate application could be proposed.
Analyzing the concerns and view of UN Human Rights bodies, it is not completely evident whether
French legislation and especially the 2010 law would be likely to be seen as a violation of
international human rights obligations.
30
2.3 The jurisprudence of the European Court of Human Rights
Since the 2010 law is too recent, there has not been any decision of European Court of Human
Rights yet. For this reason, it is necessary to analyze the decisions somehow related to the subject
and if possible, presume what direction the Court will take in deciding on cases concerning the
2010 law in context of the religious freedom as enshrined in the Convention. I would like to
mention several leading cases concerning most of all the veiling at schools and restrictions imposed
on the freedom of religion by several states, where the secular character of the state organization
enjoys a significant position.
First of all, I would like to start with the case of Leyla Şahin,88 concerning wearing of the Islamic
headscarf in institutions of higher education. The applicant, enrolled at the Faculty of Medicine at
Istanbul University, was denied access to examinations and lectures because of wearing the Islamic
headscarf. The ban was based on the Istanbul University circular, forbidding the admission to
lectures, courses and tutorial to students whose heads are covered.
Here I would like to point out several analogies concerning the position of secularism in state
organization of Turkey and France. The Constitutions of both countries provide that these countries
are democratic, social and secular.89
The historical evolution of the separation of public and religious spheres was marked by series of
revolutionary reforms in both countries, and the violation of secularism is rather seen as a threat to
democratic, republican values and civil peace. The Constitutional status secularism enjoys in both
countries is the result of historical experience and in both countries it is considered to be an
essential condition for democracy and “guarantor of freedom of religion and of equality before the
law”.90
Similarly, the Constitutional Court of Turkey observed that in order to protect secularism, the
freedom to manifest one's religion could be restricted on the grounds of public order. The main
issue however is, analogically to French 2004 Law, the clash between the freedom to manifest one's
religion and principle of secularism – in this case principle that State education must be neutral.
In its judgment, the Court analyzed the requirements of the Article 9 of the Convention – the
interference had to be prescribed by law, pursue a legitimate aim and be necessary in a democratic
society, within the meaning of the Article 9(2).
88 Leyla Şahin v. Turkey (Application No.44774/98), ECHR, Judgment of 29 June 2004.
89 Constitution of Turkey of 17 October 2001, Article 2 provides: “The Republic of Turkey is a democratic, secular and
social State based on the rule of law (..).”
French Constitution of 4 October 1958, Article 1 provides: “France shall be an indivisible, secular, democratic and
social State. (..).”
90 See note 88, para.39.
31
First of all, the requirement of being prescribed by law means that the impugned measure should
have basis in domestic law.91 Furthermore, the law itself has to be accessible and sufficiently
precise, to satisfy the requirement of foreseeability. 92
Secondly, the legitimate aim concerns the protection of rights and freedoms of others and protection
of public order, analogically applicable to the French Act.
Thirdly, the Court analyzed the requirement of necessity in a democratic society, taking into account
State's margin of appreciation. The Court's task was therefore to determine “whether the measures
taken at national level were justified in principle and proportionate”.93 Moreover, the Court is taking
into account what is at stake, most of all “the need to protect the rights and freedoms of others, to
preserve public order and to secure civil peace and true religious pluralism”.94
Concerning the judgment, the Court held that there has been no violation of Article 9 of the
Convention. The only dissenting opinion of judge Tulkens questioned several aspects of the
judgment that might be analogically applied on Court's future decisions concerning the 2010 law.
Judge Tulkens emphasized that European supervision is needed even if the margin of appreciation is
used as a justification. Moreover, the judge expressed a disagreement with weighing the principles
of secularism, equality and liberty instead of their harmonization. The Judge interestingly compared
different attitudes of the Court toward acts related to the religious freedom – for instance in Gündüz
v. Turkey95 Muslim religious leader violently criticized the secular regime in Turkey and even
though his acting could be considered as incitement to religious hatred, the Court insisted that his
remarks fell within the scope of freedom of expression; whereas peaceful wearing of headscarf is
prohibited. Those kinds of decisions might help us predict what the future decision of the Court
deciding on the violation of Article 9 of the Convention in context of the 2010 law might be.
The questions of secularism or laïcité were included in several other decisions of European
Court of Human Rights. In the Court's decision Cha'are Shalom ve Tsedek v. France,96 the Court
stated that the questions of relationship between the State and Church shall be left to State's margin
of appreciation.
91 Ibid. para.84.
92 Ibid. para.98 – this is a common test applied by the Court, equally used in already mentioned cases such as i.e.
Kokkinakis.
93 Ibid. para.110, para.122.
94 Ibid. para.110.
95 Gündüz v. Turkey, (Application No. 35071/97), ECHR, Judgment of 4 December 2003.
96 Cha'are Shalom ve Tsedek v. France, (Application No. 27417/95), ECHR, Judgment of 27 June 2000, para.84.
32
Another decision – Refah Partisi and others v. Turkey97 is another representative case concerning
secularism and its position in society. Turkish government banned Refah, the Islamist political
party. The Constitutional Court of Turkey estimated that Refah had been dangerous for the rights
and freedoms guaranteed by the Turkish Constitution and most of all for the Turkish version of
laïcité. The European Court of Human Rights stated that 'secularism' enjoys such a position in
Turkish Constitution allowing dissolution of Refah without violating the provisions of the
Convention. Furthermore, concerning the democratic element of the society, the Court held that the
State may limit the freedom to manifest a religion, “if the exercise of that freedom clashes with the
aim of protecting rights and freedoms of others, public order and public safety”. 98 It is important to
point out, that these restrictions concern simple wearing of the Islamic headscarf, not necessarily
covering one's face. Therefore, once the veil covers woman's face, the interest in protecting the
public order and public safety, as proclaimed by the French authorities, might meet even wider
understanding from the Court.
The most relevant case for the future case law concerning the face-covering veiling in French public
spaces is Ahmet Arslan and others v. Turkey.99 In this case, the Court made obvious distinction
between the necessary secular character of public institutions and public spaces. In this case, the
State failed to demonstrate the necessity of restricting the wearing of religious symbols in public
spaces. No evidence of proselytizing was shown and the display did not cause any disruption to
public order and security.
From above mentioned it is quite evident, that the Court might emphasize and protect the secular
character of State's public institutions and establishments, however in the question of public spaces
the Court has shown rather critical attitude toward secularism as a form of justification. According
to the aforementioned case law, the public order and security are to be taken as sufficient grounds
for restriction.
97 Refah Partisi v. Turkey (Application No. 41340/98), ECHR, Judgment of 13 February 2003.
98 Ibid. para 92; already held in the decision Dahlab v. Switzerland (Application No.42393/98), ECHR, Judgment of
15 January 2001.
99 Ahmet Arslan and others v. Turkey (Application No.41135/98), ECHR, Judgment of 23 February 2010.
33
2.4 Margin of Appreciation – possible justification?
Margin of appreciation is a term that “refers to the space for manoeuvre that the Strasbourg
organs are willing to grant national authorities in fulfilling their obligations under the European
Convention on Human Rights.”100
The doctrine itself emerged from the jurisdiction of member states and from the jurisdiction of the
European Court of Human Rights. In France, the doctrine of margin of appreciation or “marge
d'appréciation” might be found in the jurisprudence of the Conseil d'État.
Margin of appreciation is a doctrine that arose from the inability of the member states of Council of
Europe to agree on common and uniform European human rights standards. Those standards agreed
are considerably vague and their clarification is left to the Court.
The lowest common set of rules is the Convention. Considering the complicated nature of
negotiations on international conventions, especially in the European context where legal and
cultural traditions considerably differ from each other, the margin of appreciation presents a
valuable tool allowing certain differences in the standards of the member states. The process of
setting a common framework and rules is still ongoing. However, the margin of appreciation is
needed in order to avoid possible confrontations between the Court and the member states and gives
the Court power to somehow balance the obligations of states under the Convention and their
sovereignty.
Another important finding is that the doctrine makes a certain distinction between the violation of
one's rights and breach of state's international obligations under the Convention. Its aim is therefore
to find a coherent set of principles that can be plausibly attributed to the Court. Furthermore, the
Court tends to interpret the margin of appreciation as a tension between individual freedoms and
collective goals. In other words, states might take measures to advance collective goals at the
expense of individual rights. However, nature of such an infringement is decently supervised by the
Court and Convention itself with so-called limitation clauses found in Articles 8-11 and control-test
applied by the Court. Briefly, it is enshrined in the Convention the legitimate aims justifying
eventual infringement of individual's rights and the obligatory nature of relevant measures taken by
a member state. The further requirements constituting the doctrine of margin of appreciation such as
proportionality or the element of “pressing social need” fall within the discretionary power of the
Court, which applies them.
100 Steven Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on
Human Rights, Council of Europe, Strasbourg 2000, p. 5.
34
The principle of proportionality is the most important criterion in order to assess whether the
limitation of a right was permissible under the Convention.101 If the contentious measure adopted by
a member state was found proportionate and necessary in a democratic society, the Convention
would not be violated.102 This is a reason why some authors directly link the principle of
proportionality to the margin of appreciation103 and some see the margin of appreciation as identical
to more prosaic “reasonableness” concept.104 The position of limitation clauses in each case is then
to assess whether state maintained a 'fair balance' between individual freedoms and collective goals.
However, even though the Court applies the findings concerning the margin of appreciation from its
previous case law, providing some legal certainty and foreseeability, the doctrine itself lacks any
normative force that can help us strike a balance between individual rights and public interest. 105
The substantive concept of margin of appreciation is therefore simply relied on the theory of
political morality. However, since no normative boundaries are set by the Convention, the discretion
emerging from the doctrine might concern several theories.
For instance, if concerning utilitarian theories, the consequence of the act or “its goodness” would
be crucial. In other words, we should try to maximize utility to reach maximum desired satisfaction.
In the context of present case, the question would be, whether the preference of the society to
protect public order and security prevails over an indirect restriction of one's right to manifest
religion. Taking into account the accommodation clauses, the relevant measures are justified.
However, neither Court nor theory provides a hypothetical test balancing the utility of the
consequences of the relevant measure and secondary impact on individual rights. Furthermore, it is
hard to presume what the future decision of the Court concerning the French Law will be, since it
has never been juxtaposing the notion of public security and right of an individual to manifest his or
her religion. I would also like to point out, that neither French authorities nor the Court have
proposed a research demonstrating relevant link between wearing of burqa or niqab, or covering
one's face in public, and the real threat to public order and public security. This uncertainty leaves
the conclusions based on utilitarianism open and leads us back to the doctrine of margin of
appreciation and discretionary power of the Court on case-to-case basis.
101 George Letsas, Two concepts of the margin of appreciation, Oxford Journal of Legal Studies, Vol.26, No. 4, 2006,
p.711.
102 After fulfilling the “limitation” or “accommodation” clauses found in Articles 8-11 of the Convention. In the case
of the French law it concerns Article 9(2) of the Convention.
103 Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the
Jurisprudence of the ECHR, Intersentia, Antwerp, 2002, p.14.
104 Eric Heinze, Review of Elias Kastanas' Unité et Diversité: Notions autonomes et marge d'appréciation des États
dans la jurisprudence de la Cour européenne des droits de l'homme, Modern Law Review, p.155.
105 George Letsas, Two concepts of the margin of appreciation, Oxford Journal of Legal Studies, Vol.26, No. 4, 2006,
p.711.
35
In contrast to consequentialism, deontological ethics106 states that some actions are wrong
regardless to consequences they cause. For instance, Immanuel Kant argued firstly, that act in a
morally right way, people must act from duty; and secondly, that motives of the person carrying out
an action make the action right or wrong, not the consequences that follow such an action.107
Applying the deontological ethics on the relevant case, it would be important whether the reasons
for restricting the right to manifest one's religion are permissible.
Analogically, the restrictions imposed on individual rights, which are not based on impermissible
justifications, would not amount to violations of rights. Summarizing and applying the
deontological approach, French authorities have adopted permissible measures, resulting in justified
restriction of individual's right. However, the question of motivation of such an act remains
contentious. If the reason for the adoption of restrictive measures was limitation of religious rights
instead of protection of public security and public order exclusively, in logic of moral theory, the
action would have to be considered as unjustified. The reasons are yet to be determined, if
challenged before the Court.
Margin of appreciation, in the context of the Convention, has its boundaries and criteria for its
application developed by the jurisprudence of the ECHR.
The doctrine of margin of appreciation has developed gradually. This process permits the Court
to interpret the Convention while using set of principles assisting the judges to determine more
precisely the scope of the rights enshrined in the Convention and the legality of state's interference
with those rights.
The first detailed notion on the margin of appreciation appeared in Ireland v. United
Kingdom.108 In this case the Court was assessing the responsibility of a state for the life of its nation
threatened by a public emergency. In other words, the Court analyzed how far it is necessary to go
in attempting to overcome the emergency on the side of a state, giving the relevant state better
position and wider margin of appreciation in deciding on domestic issues.
The doctrine of the margin of appreciation not only remained present in the jurisprudence of the
Court, it is being developed until nowadays. Hence, in order to responsibly assess the future
considerations of the Court, it is necessary to point out the achieved conclusions concerning the
margin of appreciation from the relevant cases, such as Handyside v. United Kingdom.109
106 Deontological Ethics, Stanford Encyclopedia of Philosophy, Metaphysics Research Lab, Stanford University,
California 2009, p.1-25.
107 Immanuel Kant, The Metaphysical Elements of Ethics, 1780, Translated by Thomas Kingsmill Abbott,
http://ebooks.adelaide.edu.au/k/kant/immanuel/k16e/.
108 Ireland v. United Kingdom, (Application No.5310/71), ECHR, Judgment of 18 January 2008, para.207.
109 Handyside v. United Kingdom (Application No. 5493/72), ECHR, Judgment of 7 December 1976.
36
n this case, the applicant Richard Handyside, proprietor of 'Stage 1' publishers, purchased British
rights of The Little Red Schoolbook. One chapter of this schoolbook contained section concerning
sex. The applicant distributed review copies of the book to local newspapers, educational and
medical journals, and devotedly advertised the book. The consequence was an extensive press
attention, resulting in both positive and negative reply. The answer of the British authorities was a
seizure of all the documents related to sale of this book such as leaflets, posters, show cards and
book copies. The Magistrates' Court issued two summonses against the applicant for having
obscene books in his possession. Handyside was found guilty before the British authorities and
fined. Handyside lodged his application in 1972, without successful result.
The Court held by thirteen votes to one that the legal requirements for applicable restrictions under
the Article 10 of the Convention were fulfilled. Briefly, the Court found that under the doctrine of
margin of appreciation, the interference with applicant's freedom of expression was defined by law,
having legitimate aim and was necessary in a democratic society. Another factor widening the
margin of appreciation was the protection of the rights of adolescent children - addressees of the
book.
The reasoning of the Court proposes closer look on the balancing the member state's obligation
under the Convention and their sovereign decisive power.
First of all, it is important to note, that the human rights protection established by the Convention
is subsidiary to the national system of protection. This is quite evident even from the position the
Convention has, i.e. in the procedure to lodge the application it is the last instance remedy - all the
national legal remedies have to be exhausted before lodging the application before the Court. The
Court therefore leaves the primary role to secure the protection of human rights standards enshrined
in the Convention to each contracting state. The system functions well, because leaving the national
authorities to decide on human rights violations presupposes better, convenient and more precise
decision. The national judge is always in a better position to decide on particular case concerning
issues arising from the situation in a relevant state, than any other international judge. In
international context, the doctrine of margin of appreciation is applied by the Strasbourg Court,
while the initial assessment of the reality of the 'pressing social need' or 'necessity' is left to the
national authorities.
In the Article 9(2) relevant for the future jurisprudence concerning the French 2010 Law, the
margin of appreciation, remaining on member states to decide on restrictions imposed on the
freedom to manifest one's religion, is expressed by wording i.e. “necessary” in a democratic society
or even “prescribed by law”, since the limitations on the right are elaborated by state authorities.
The margin of appreciation might be given also to other bodies, judicial amongst others, that are
37
requested to interpret and apply the laws in force.110
Notwithstanding the scope of state's margin of appreciation, according to the Article 19 of the
Convention, it is the Court itself responsible to ensure the observance of the engagements
undertaken by the member states. The European Court of Human Rights is the final instance to give
definite ruling on whether the penalty or restriction imposed by the state on, in this case, freedom to
manifest one's religion, is compatible with state's margin of appreciation in the context of the
Convention. Hence, the domestic margin of appreciation goes hand in hand with European
supervision.111 The supervision of the Strasbourg Court then balances the aim of such a measure
and its necessity.
In short, the Court defined a set of rules applicable in determination of particular state's margin
of appreciation. The first rule is the rule of effective protection, stressing that the leading function of
the Convention is the effective protection of human rights rather than enforcement of mutual
obligations between States.112 The second rule is a principle of subsidiarity. This principle positions
the member state in a leading position to decide democratically what suits it the best. The Court
remains in a position of guarantor or guardian of human rights of the last instance. While the main
responsibility to protect the human rights standards lies on member states. Thus, the position of the
Court is solely to determine whether the state authorities have remained within the limits provided
by the Convention. This attitude helps to arch discrepancies raised between the two competing
principles of the European human rights law – subsidiarity and universality. In words of the Council
of Europe,113 the idea is to insist on the same European protection for everyone, by developing the
common standards. These standards are to present minimum requirements each contracting state
has to follow and the states are expected to exceed them.114
The doctrine of margin of appreciation is closely related to the permitted restrictions on human
rights enshrined in the Convention. The Article 9(2) encompasses several permitted limitations such
as those necessary in democratic society in the interests of public safety and public order. This
provision provides quite a wide margin of appreciation to French authorities that have defended the
prohibition on veiling a face in public spaces by the protection of public safety and public order.
However, the Court decides on case-to-case basis and it would be far too audacious to claim what
110
111
112
113
114
Engel and others case, (App.No.5100/71), ECHR, Judgment of 8 June 1976, para.100;
De Wilde, Ooms and Versyp case, (Series A no. 12), ECHR, Judgment of 18 June 1971, para.93;
and the Golder case, (App.No. 4451/70), ECHR, Judgment of 21 February 1975, para.45.
Handyside v. United Kingdom, (Application No. 5493/72), ECHR, Judgement of 7 December 1976, para. 49-50.
Van Dijk and Van Hoof,Theory and Practice of the European Convention on Human Rights, Kluwer Law
International, The Hague-Boston-London 1998, p. 74.
The Margin of Appreciation, Council of Europe,
http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/ECHR/Paper2_en.asp.
Jacobs, White and Ovey, The European Convention on Human Rights, Oxford University Press, Oxford 2010,
p.577.
38
the future decisions will look like.
Apart from the precise wording of each Article protecting particular freedom, permitted
infringements of these freedoms must possess certain characteristics if the Court is to decide in
favor of State's measure.
These requirements are following: the measure is to be prescribed by law (in accordance with law),
it is to follow a legitimate aim and it is to be necessary in democratic society. When in accordance
with law or prescribed by law, the relevant act has to be accessible115 to persons potentially affected
by the measure (foreseeable), sufficiently clear and precise.116
When following a legitimate aim, the aim has to be enshrined in the relevant legal provision and has
to be genuinely applied to the applicant in a particular case.117 In other words, the restrictions
permitted under the Convention, in this case restrictions enshrined in the Article 9(2), shall not be
applied for any purpose other than those for which they have been prescribed.118
Necessary in a democratic society: this requirement is to ensure protection of individual rights,
when restricted by state on basis of legitimate purpose, while the restriction is not necessary in a
given situation. This safety break allows the Court to make a qualitative analysis regarding the
domestic legal provisions and their application.
This requirement is already being discussed when considering the future cases under the 2010
French Act. If presuming that the potential purpose of this law was indeed to prevent Muslim
women to wear burqa(s) in public spaces, it would still have to be necessary in a democratic
society. The reasoning based on French idea of secularism would definitely not be sufficient basis
for such a restriction. It is more than evident, that the Court would find the restriction incompatible
with the requirement of necessity in a democratic society, where pluralism of religious thoughts and
manifestations is indisputable. In the aforementioned Handyside v. United Kingdom case,119 the
Court connected the requirement of “necessity” with “pressing social need”. However, the Court
hasn't proposed a clear definition of the “pressing social need”, therefore those who are left with
certain margin of appreciation to determine the conditions, at first place, are national authorities.
115 i.e. in the Silver and others v. United Kingdom case the Court held that the regulation of prisoners' correspondence
could be gleaned from the content of formal law. In other words, the Court confirmed that relevant restrictive rule,
limiting the rights of individuals, was accessible.
116 i.e. in the Sunday Times v. United Kingdom the Court stated that a “law has to be formulated with sufficient
precision to enable the citizen to regulate his conduct: that person must be able – if need be with appropriate
advice – to foresee, up to a reasonable degree - given the circumstances, the consequences which a certain action
may entail. Those consequences need not however to be foreseeable with absolute certainty.” para.49.
117 The Margin of Appreciation, Council of Europe,
http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/ECHR/Paper2_en.asp.
118 The Convention for the Protection of Human Rights and Fundamental Freedoms, Rome 1950, Article 18.
119 See note 109, para 48.
39
The function of the Court is to eventually supervise the decision. When analyzing the necessity of a
restriction, the Court takes into account the proportionality between the particular objective to be
achieved and the means used to achieve that objective.120
The principle of proportionality is applied on case-to-case basis, taking into consideration the nature
of human rights and freedoms that are to be protected.
For instance, where fundamental rights are at stake, a strict approach is to be applied. The test
applied by the Court to determine whether the restriction is proportionate, consists of four
questions:121 Is there a pressing social need for some restriction of the Convention? If so, does the
particular restriction correspond to this need? If so, is it a proportionate response to that need? In
any case, are the reasons presented by the authorities, relevant and sufficient?122
When analyzing whether the restriction is proportionate, the Court assesses the extent to which the
measure restricts the relevant right. Should the limitation be proportionate, the very essence of the
right has to be preserved. Furthermore, the restriction has to be objective.
The freedom of religion is nowadays one of the most dynamically developing human rights. The
religious pluralism in the member states of the Council of Europe is being challenged by a growing
immigration and raising number, most of all, of the Muslim population. Turkey, one of the Muslim
countries participating in the European protection of human rights is not anymore the only country
with particular religious issues. In past decades, the Muslim minority has multiplied in number, and
not only in France. Some see the Muslim immigration and related issues as demographic time
bomb.123 This structural change in the states of the European community is definitely reflected in
the jurisprudence of the ECHR. The institution to give a feedback to present developments in
human rights is, after all, the Strasbourg Court. However, the final decision of the Court reflects the
current “European consensus standard”. This principle is based on a presumption that human rights
standards are related to the societal development; therefore the Convention itself is being
interpreted as a living document rather than treaty with rigid provisions following the former aim of
the drafters.124
120 Richard Clayton, Hugh Tomlinson, The Law of Human Rights, Oxford University Press, Oxford, 2000, p. 278.
121 The test was set by the jurisprudence of the European Court of Human Rights (Handyside v. United Kingdom).
122 The Margin of Appreciation, Council of Europe,
http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/ECHR/Paper2_en.asp.
123 Muslim Europe: the demographic time bomb transforming our continent, The Telegraph, London 2009,
http://www.telegraph.co.uk/news/worldnews/europe/5994047/Muslim-Europe-the-demographic-time-bombtransforming-our-continent.html.
124 Onder Bakircioglu, The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public
Morality Cases, German Law Journal Vol.08, No.07, p.716.
40
One could describe the European consensus standard as an agreement of European states on
certain practices concerning the protection of human rights. The final decision of the Court is
therefore based on similarities in domestic practices in protection of the human rights enshrined in
the Convention. Accordingly, the allowed margin of appreciation will be wider if the restrictive
practices of the member states are not having a common pattern. In other words, if the general
European consensus is missing, the state would be granted wider margin of appreciation and vice
versa.
Unfortunately, even the European consensus standard is not determined by an exact legal
framework, or by comparative legal research. The result is that sometimes a country following a
slower development of human rights standards is sanctioned.125 On the other hand, a country having
imposed a restriction on the human rights and freedoms enshrined in the Convention shall be
granted a wide margin of appreciation if the European agreement on certain concept is missing. For
instance, in the case of Handyside v. United Kingdom,126 the legitimate aim was the protection of
morals, and the United Kingdom was granted a wider margin of appreciation because the European
conception of morals had been missing.
The application of the margin of appreciation in the Court's decisions under the Article 9 of the
Convention will therefore depend on various factors. As already mentioned, first of all, the
legitimate restrictions anchored in the second paragraph of the Article 9 will be applied.
Subsequently, the factors developed by the Court's jurisprudence are to be taken into consideration.
State's motivation for a particular restriction has its importance, however being desirable,
indispensable, reasonable or useful is not sufficient. The measure has to be necessary, which implies
a pressing social need.127
Thus, first of all, the margin of appreciation concerning the ban on veiling the face (once
understood as a restriction on freedom of religion) lies on French state authorities. These authorities
have to apply the legitimate reasons for restriction of the religious freedom enshrined in the Article
9(2). Furthermore, the restriction has to pass the margin of appreciation test set by the Court.
However, the freedom of religion is a dynamic right closely related to the rate of immigrant
Muslims to European countries and consequential demographic representation of Muslims in a
society. The response of the European countries to the current situation in the form of a common
precise framework concerning the freedom of religion is missing. Even though the states have set
some common rules and legitimate restrictions on the religious freedom, they do leave certain void
spots.
125 The Margin of Appreciation, Council of Europe,
http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/ECHR/Paper2_en.asp.
126 See note 109.
127 Sunday Times v. United Kingdom, (App. No. 6538/74), ECHR, Judgment of 26 April 1979, para.59.
41
Those might be eventually justified on a domestic level by, for instance, “different concept of
secularism” (laïcité) in France or Turkey because the margin of appreciation is expanded. On the
contrary, when the consensus of the member states is present, the margin of appreciation is narrow.
The question of general ban on burqa or niqab might be easily seen as politicized. Initially
proposed justifications based on e.g. laïcité would most probably be not sufficient for the
Strasbourg Court. For this reason, the French government has chosen, in their eyes, rather
politically correct approach avoiding a direct confrontation with Muslim minority – concerning that
the provisions of the French 2010 law do not contain any reference on Islamic veils, nor
manifestation of Islamic religion. The law exclusively concentrates on the question of veiled face
versus public security and public order. For this reason, it is rather plausible the Court will consider
the implied restriction on the freedom of religion as acceptable. Even though the Strasbourg Court
is an apolitical body, in the end its decisions somehow reflect the political situation in the member
states. For instance, after the 9/11 and subsequent attacks in Madrid and London, the imminent
threat of terrorism made the European political authorities change their attitude toward the national
security measures. The security policies have stiffened up and the restrictive measures, such as ban
on veiling of a face in public spaces, even if resulting in interference with the rights enshrined in the
Convention, are quite likely to obtain general endorsement.
The Court's jurisprudence and the interest of public security: currently, the jurisprudence at least
partially concerning an interference of public security measures with freedom of religion is
negligible.
On the level of International Community, the cases somewhat relevant, such as A.K. and A.R. v.
Uzbekistan,128 addressing the acute conflict between the fight against terrorism and religious
extremism and protection of human rights,129 are rather related to political and religious
oppression130 than freedom to manifest one's religion; even though they are vitally related to each
other.
The intention of the Uzbek radical Islamic organization Hizb ut-Tahrir promoted by the applicants
was to establish an Islamic state and to restore the practice of Islamic piety. Such a behavior is
undoubtedly extreme in nature, however considering that around 90% of Uzbek population is
Muslim;131 the declaration of Caliphate is quite expectable.
128 A.K. and A.R. v. Uzbekistan, Human Rights Committee, CCPR/C/95/D/1233/2003, 28 April 2009.
129 Helen Keller, Maya Sigron, State Security v. Freedom of Expression: Legitimate Fight Against Terrorism or
Suppression of Political Opposition?, Human Rights Law Review, Oxford, Vol. 10, Issue 1, p.151-168.
130 The case of UN Human Rights Committee concerning two Uzbek citizens seeking, receiving and imparting
information and radical ideas related to Islam. Their conviction did not violate any of the ICCPR provisions.
131 Islam in Uzbekistan, http://muslimvoices.org/islam-in-uzbekistan/;
Report on Muslim Population, http://www.islamicweb.com/begin/population.htm.
42
What is important to point out, that cases, such as A.K. And A.R. v. Uzbekistan,132 eventually
influence the attitude of European states toward Muslim population. The fear of changing
demographic structure of formally Christian states is reflected even in the jurisprudence of the
Court.
In European legal context, a similar case has appeared – the case of Refah Partisi (The Welfare
Party) and Others v. Turkey.133 The principal issue of this case is a protection of secularism in
Turkey. The members of the Welfare Party were accused of declarations indicating that party's
objectives had been introduction of Sharia and a theocratic regime, essentially incompatible with
the requirements of a democratic society, and the party was dissolved. On the other hand, the
members of Refah insisted that those ideas were taken out of context and were distorted in meaning.
Thus, contrary to defendant’s arguments, Refah was supposed to support pluralism of religious
beliefs and secularism. The Court assessed the necessity of the state interference (dissolution of the
party) in light of pressing social need. Eventually, the Court concluded that Refah had indeed
intended to set up a regime based on Sharia, not excluding recourse to force in order to implement
its policy. Hence, the acts were not compatible with the concept of a democratic society and the
interference was proportionate in relation to the aims pursued.134
These are just two from increasing number of human rights cases dealing with Islamic questions.
I would like to point out once again, that the Court's case load concerning restrictions of Muslim
minority rights, whether individual or collective, is given considerable significance because of the
gradual demographic change in the composition of European states. Confronting each other on
European and International fora, the European political elites modify their attitude toward religious
freedom of Muslim immigrants resulting in progressive development of the margin of
appreciation.135
The two leading cases related to ban on headscarves (even though limited to public institutions)
– Dahlab v. Switzerland136 and Leyla Şahin v. Turkey137 reveal the current nature of the margin of
appreciation concerning religious dress codes. The Court decided in both cases that the measures
undertaken by the Turkish and Swiss governments fell under the legitimate aim enshrined in the
Article 9(2) of the Convention; protecting the rights and freedoms of others – in the case of primary
school teacher Dahlab, and in the case of university student Sahin maintaining the public order.
The most importantly, in both cases the Strasbourg Court applied a broad margin of appreciation
132
133
134
135
136
137
See note 128.
See note 97.
Ibid. para.135.
See note 85.
Dahlab v. Switzerland, (App. No. 42393/98), ECHR, Judgment of 15 January 2001.
See note 88.
43
because there was a negligible or no consensus within the European community whether veiling is
included in the protection under the Article 9 of the Convention.138
Eventually, the Court applied the proportionality test but the final conclusion remained the same:
when European consensus on how to treat the wearing of religious symbols is missing, the member
states are granted a wide margin of appreciation.
Another relevant aspect falling within the State's margin of appreciation is the aspect of public
security, presented by French authorities as leading justification clause in 'restricting dress codes' in
public. Generally, the public security could be defined as a function of governments aimed at
ensuring the protection of citizens, organizations, and institutions against threats to their well-being,
contributing to prosperity of their communities.139
The issue of religious symbols in the context of public order and public security has contributed to
widespread debate on the admissible scope of freedom of religion in numerous countries around the
world. Wearing of Muslim veils is not the only topic to be focused on; other religious symbols or
objects, such as e.g. Sikh kirpans are being analyzed equally.
Such an analysis eventually emerges to certain legal and public policy acceptance of these religious
symbols. However, the accommodation of aforementioned symbols depends on variety of factors
differing from state to state, and it's often based on constitutional proportionality test that balances
the freedom of religion against the possible threat to safety, security and public order. 140
The scope of State's tolerance would then depend on national political cultures and social evolution
of the particular country. For instance, the policy of countries such as Canada or United States,
which are considered to be traditional countries of immigration, would apply more neutral approach
toward the manifestation of one's religion, whereas countries with more recent immigration would
tend to be more restrictive in their policies. France has somewhat particular position, having its
more recent immigration regulated by rather strict Republican principle of laïcité, which insists on
strict secularism in public domain.
138 The Margin of Appreciation, Council of Europe,
http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/ECHR/Paper2_en.asp.
139 Webster's dictionary, http://www.websters-online-dictionary.org/.
140 Laura Barnett, Freedom of Religion and Religious Symbols in the Public Sphere, Parliament of Canada, Law and
Government Division, Ottawa 2008.
44
Nowadays, the situation concerning public order and public security is different in comparison with
pre-9/11 public policy. The main difference arose from the drastic manifestation of modern
terroristic tactics, attributed to Islamic movements. Even though the background of these attacks
remains contentious, the State policies have been promptly adapted to the new order. 141 In other
words, public security has become an important political and economic issue, and it has been
reflected e.g. in significant change of general framework and tasks of the police and border
authorities.
141 This concerns general world security policy, which has been developed in numerous countries, most of all the
allies of United States, copying the pattern of US Homeland Security Act of 2002. (e.g. United Kingdom and its
Anti-Terrorism Crime and Security Act of 2001, Belgian Anti-Terrorism Act of 2003, Australian Anti-Terrorism
Act of 2005, Canadian Anti-Terrorism Act of 2001, Indian Prevention of Terrorist Activities Act of 2004, etc.).
45
Eventually, this change was reflected in the French law, even though presumably complemented by
backstage national policies, such as fear from multiculturalism destroying France's social
cohesion.142 The Act itself imposes general ban on face-covering in public spaces, reasoned by the
public order and public security protection. The question could therefore be, how far can French
authorities go in restricting human rights, such as the right to manifest religion, even though the
restriction is indirect? In this case, first of all, the constitutional proportionality test, balancing the
scope of freedom of religion and imposed restrictive measures, would be applied. It is important to
point out, that various states have come to very different conclusions about the extent of religious
rights, depending on cultural histories, domestic policies, legal development, etc. In this context, the
wording of French constitutional documents is very ambiguous and leaves wide room for discretion
of French judicial authorities and most of all the Constitutional Council, while interpreting relevant
provisions. For instance, the Declaration of the Rights of Man and of the Citizen of 1789 or the Law
of 1905 only mentions the keeping of peace and maintaining public order.143 Within the concept of
doctrine of laïcité, fully accepted by relevant European authorities, and present threats of terrorism
assigned to extremist Islamic religious groups, the general notion of public order and public security
remains permissible and accepted justification for human rights limitations. However, there is no
clear definition on permissible acts taken by public authorities in order to protect those aims. In
other words, where are the limits in restricting individual human rights in order to protect public
order or public security? So far, the proportionality test balancing individual human rights and
collective interests protected by law relies on the margin of appreciation doctrine, leaving room for
national discretion but once challenged, it undergoes a general scrutiny of the Court. National
authorities, in wording of the definition, would have to prove the existing threat to well-being of
their citizens, organizations, and institutions. In my opinion, within the imminence of terroristic
attacks and media pressure concerning extremist Islamic groups, and up-to-date Court's case law,
the European states are granted wide margin of appreciation concerning public security measures.
Therefore, restriction on covering of one's face in public spaces, even though it might have an
indirect impact on religious rights of Muslim minority, would most probably be approved in
eventual future French law cases, lodged before the Court.
142 Steven Vertovec and Ceri Peach, eds., Islam in Europe: The Politics of Religion and Community, St Martin’s Press,
New York 1997, p. 7.
143 Déclaration des droits de l'homme et du citoyen de 1789, Paris 1789, Article X;
Loi du 9 décembre 1905
relative à la séparation des Églises et de l'État, Paris 1905, Article 1.
46
2.4.1 Final remarks on the doctrine of margin of appreciation
The concept of margin of appreciation is closely related to discretionary power of signatory states
of the Convention. Before having the Convention signed, the unique entity responsible for the
domestic protection of human rights were States, without any external “safety brake” for victims of
human rights violations in the case of State's failure to protect those rights. After its enforcement,
the member states assented to human rights standards enshrined in the Convention as minimum
human rights criterions to be protected within each member state. Nowadays, the states have a
positive obligation to ensure the same or higher level of protection of those rights within their legal
systems.
If this rule is violated and State fails to comply with Conventional obligations, the Court is to draw
consequences. The purpose of margin of appreciation has therefore been to conserve certain state
sovereignty in deciding on human rights issues. However, this sovereignty is framed by European
supervision, which emphasizes the priority to protect individual freedoms toward the human rights
violations caused by member state. Eventually, the Court's leading position is to arbitrate the
quarrels between the member states and their citizens, taking into consideration the interest of a
state to maintain wide discretionary power and interest of an individual to enjoy high level of
protection of his/her rights. In other words, the Court decides on opposite interests, since a wider
state's margin reflects lower protection of citizens' rights. In order to decide justly, the Court has to
consider numerous factors, such as European consensus on particular issue, importance of right in
question, the nature of state's measure infringing with the relevant right, necessity, proportionality,
etc.
In order to answer the question whether the concept of margin of appreciation can be taken as
sufficient justification (regarding the right to manifest one's religion), the requirements anchored in
the Convention and the “test” elaborated by the jurisprudence of the Court are to be applied.
If considering the 2010 Law to be in an explicit violation with the right to manifest one's religion,
the first remark would be directed toward the lack of European consensus on religious dress codes –
in this case on wearing of face-covering veils. Hence, the margin of appreciation in this case is
wider, and the measures to regulate this phenomenon remain, at first place, on state authorities.
Once the application is lodged before the European Court of Human Rights, the Court would
analyze the requirements enshrined in the Article 9(2). The limitation is undoubtedly prescribed by
law and fulfills the requirement of accessibility, sufficient clearness, precision and foreseeability.
47
The condition of necessity in a democratic society is rightly fulfilled by the justification based on
the protection of public safety and public order. However, the Handyside144 proposed a detailed
specification of the requirement of necessity and legitimate aim while applied.
As stated in the case - the legitimate aim has to be enshrined in a legal provision and has to be
genuinely applied to applicant in a particular case and has to be applied only for the purpose for
which it has been prescribed.
The recent fining of women dressed in integral veil,145 did not reveal any excessive treatment of
those women falling outside the framework of genuine application and prescribed purpose.
However, the Court's space for manoeuvre is reflected in balancing the legitimate purpose with the
questionable necessity of a restriction. In other words, the Court would balance the proportionality
between the objective of a restriction with means used to achieve that objective, in so-called
qualitative analysis. There is no guarantee on how the future decision of the Court will be.
So far, the objective to protect public order and safeguard public security is of the highest
importance, justifying the restrictions on freedom to manifest one's religion by wearing an integral
veil. Moreover, the authorities have smartly avoided tendentious wording of the Articles, therefore
to forbid each person, regardless to religious pertinence, to cover their face in specified public
spaces, in order to prevent a potential security threat, might be considered as proportionate.
The contentious part of the decision would arise, if the Court raised a similar question to the one of
the Conseil Constitutionnel and Conseil d'État, concerning the imminence of the security threat or
threat to public order and the minimum set of measures public authorities need in order to prevent
this threat.146 Briefly, even if there was such a threat, the identity control of the authorities would
not need to be permanent. However, France used its margin of appreciation in this case and the final
decision on whether or not it overpasses the limits granted by the Convention and Court's
jurisprudence remains on the Court.
Additional rules formed by the Court, as i.e. effective protection, etc. might be approved in favor of
the Republic, taking into account France's achievements in the protection of religious rights and
freedoms.
Applying the “test” to find out, whether a restriction is proportionate,147 would not be of an
undisputable result too, since the limitation itself is not intended to restrict the right of Muslim
women to manifest their religion.
144 See note 109.
145 French police fine first woman for wearing a veil in public, Metro, Paris 2011,
http://www.metro.co.uk/news/860675-french-police-fine-first-woman-for-wearing-a-veil-in-public.
Niqab: une amende aux Mureaux, Le Figaro, Paris 2011,
http://www.lefigaro.fr/flash-actu/2011/04/12/97001-20110412FILWWW00404-niqab-une-amende-auxmureaux.php.
146 See note 51.
147 See note 81.
48
Conclusion
The Law 2010-1192 (hereinafter: Law, French Law) was adopted by both chambers of the French
Parliament for a single formulated purpose – to protection of public security and public order. Even
though the wording of the Articles strictly avoids any religious connotations, the law indirectly
results in restriction of religious freedom of certain Muslim women. This limitation of their rights
has to be based on legitimate justifications, either enshrined in domestic legal sources, international
or European legal provisions.
Before the actual draft of the Law was submitted to the Parliament, long-lasting research on Muslim
religious rights had been performed, initiated by first religious discrepancy in Creil. 148 This
situation launched series of measures and restrictions on religious rights and freedoms, resulting in
2004 law on secularity and conspicuous religious freedoms. This law confirmed, for the first time,
the importance of laïcité as one of the fundamental Republican principles allowed to restrict
religious rights of pupils and personal in public schools. Similarly, the legal system in France
contains several other provisions concerning the obligations to remain neutral of any religion – such
as in the case of public employees while exercising their functions. The protection of laïcité is
considered to be necessary in order to protect the common good. Briefly, French citizen should have
an opportunity to recognize himself in Republic and it can only happen if the state itself remains
neutral, so that all the citizens can live together in religious peace and equality. This notion of
secularism presupposes negative delimitation – the religious equality consists in no manifestation in
public, common to all the religions without exception, contrary to e.g. Holland, where all the
religions have equal right to be manifested in public.149
However, the restrictions based on the concept of secularism can only be applied in certain
circumstances and places. French legislature approves laïcité as legitimate restriction only in
aforementioned places (for instance public educational establishments) and while exercising public
functions.150 According to the conclusions of Conseil d'État, the general ban on integral veil rejects
laïcité, public security and equality between sexes as legitimate justifications. Concerning the ban
on dissimulation of face in public spaces, public order and public security present sufficient basis
for state measures restricting certain rights, including right to manifest one's religion.
148 “L'affaire du voile” (1989).
149 See note 36.
150 Étude relative aux possibilités juridiques d'interdiction du port du voile intégral, Rapport adopté par l'assemblée
générale plénière du Conseil d'État le jeudi 25 mars 2010.
49
However, the concept of laïcité has not been considered in this context, since the face-veiling itself
does not refer to religious issues. The consecutive binding decision of the Constitutional Council
researched on the constitutionality of the ban on dissimulation of face in public spaces, resulting in
approval of public security as a legitimate justification of state measures restricting certain citizens'
rights. The principle of laïcité remained ignored for obvious reasons. Hence, the principle of laïcité
could not be considered as appropriate justification of general prohibition of the integral veil nor of
the ban on dissimulation of face in public spaces.
The justification based on the doctrine of margin of appreciation would be rather plausible.
First, the reasoning of French authorities is in compliance with European standards set by the
Convention. The Law falls within the requirements of necessity in a democratic society enshrined in
the Article 9(2) of the Convention and would probably pass the test proposed by the Handyside151
and Kokkinakis.152 While researching on the legitimate justification based on the protection of
public security and public order, the control performed by state authorities could be seen as
excessive. Concluding the findings of Gerin Mission, Conseil Constitutionnel, Conseil d'État,
Parliamentary fractions, altogether with the outcomes of the Court's jurisprudence, I would say that
French authorities pursue a very thin line between the legitimate aim of protecting public interests
and discriminatory measures toward Muslim minorities. So far, the need to protect public security
amplified by current unfortunate development of world politics, do comfort the Republic to apply
more restrictive measures. Moreover, changing the demographic line in European states and
eventual discrepancies over extended religious requirements (falling outside the practices common
for European states' Christian tradition), definitely lead to certain changes in religious policy.
Tolerance toward (i.e. Muslim religious practices) is being formed according to the ambit of
liberties challenged.153 Therefore, generally I would presume the restrictions imposed by the Law to
be endorsed by the Court, while the final decision will depend on the merits of a particular case.
In international background, the ban on dissimulation of face in public spaces would be submitted
to analogical testing.
151 See note 109; State measures have to be prescribed by law, have legitimate aim and be necessary in a democratic
society. Prescribed by law means the act has to be accessible, sufficiently clear, precise and foreseeable. The
legitimate aim: measures have to be enshrined in a legal provision and genuinely applied to the applicant in
particular case, and to be applied only for the purpose for which they've been prescribed. Necessary in democratic
society: when there is legitimate purpose but the restriction is not necessary. (The qualitative analysis of the Court
to determine the proportionality between objective and means used to achieve this objective).
152 See note 31; The Court must determine whether measures taken at national level are justified and proportionate.
153 Rapport d'Information sur la Pratique du Port du Voile Intégral sur le Territoire National, Paris 26 Janvier 2010,
p.73-77.
50
However, the legal enforcement is more effective on regional – European level. The freedom of
thought, conscience and religion is anchored in the Article 18 of the Universal Declaration of
Human Rights (hereinafter: Declaration) and can be restricted only by limitations enshrined in the
Article 29.154
The Special Rapporteur on Freedom of Religion or Belief concluded that limitations concerning
veiling at schools imposed by state have to be necessary, applied in non-discriminatory manner, and
must be directly related and proportionate to the specific need they pursue. These requirements are
applied in order to protect the most vulnerable. Analogically to domestic situation in France, the
restrictions applied to protect the secular character of public schools and religious rights of pupils
attending these schools are stricter than those applied in other public places. The wording of the
French Law is in compliance with the requirements provided in the Article 29(2) of Declaration.
Furthermore, concerning the formal purpose of the Law and the practice of relevant public
institutions while imposing penalties for the violation of the Law, it can be said that the
aforementioned requirements demanded by the Special Rapporteur are most probably fulfilled.
The final conclusion would therefore be that the Law No.2010-1192 forbidding the dissimulation of
face in public spaces is, in general, compatible with international human rights law and European
human rights Law. The extent to which the Law complies with international and European human
rights standards is summarized above. However, the recent character of the Law and lack of
pending cases before the European Court of Human Rights in this question, do not provide the final
answer reflecting the European supervision, thus the ultimate response remains ambiguous.
154 Article 29(2):”In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order and the general welfare in a democratic
society.”
51
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64. http://dinersroom.eu/5403/la-constitutionnalite-paresseuse-de-linterdiction-de-la-burqa/.
65. http://www.diplomatie.gouv.fr/fr/IMG/pdf/0205-Barbier-FR-5.pdf.
66. http://ebooks.adelaide.edu.au/k/kant/immanuel/k16e/.
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68. http://www.law.berkeley.edu/library/classes/iflr/customary.html.
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71. http://www.lexpress.fr/actualite/societe/le-voile-integral-n-est-pas-une-prescriptionreligieuse-selon-le-cfcm_794536.html.
72. http://www.loc.gov/law/help/child-rights/france.php.
73. http://www.metro.co.uk/news/860675-french-police-fine-first-woman-for-wearing-a-veil-inpublic.
74. http://muslimvoices.org/islam-in-uzbekistan/.
75. http://www.notredamereims.com/hgecas/echg/ec4/304/30403.pdf.
76. http://www2.parl.gc.ca/content/lop/researchpublications/prb0441-e.htm.
77. http://www.senat.fr/rap/r09-698/r09-6981.html.
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