How SAS v France and Yaker cases have similarities and differences. How did these two human rights bodies reach such different conclusions in similar cases?
In 2014, the Grand Chamber of the European Court of Human Rights (ECtHR) found in the case of S.A.S. v. France that the French Law prohibiting facial concealment in public spaces (i.e. introducing a ‘burqa ban’) did not violate either the applicant’s freedom of religion or the prohibition of discrimination. By contrast, in 2018 in the very similar case of Yaker v. France, the UN Human Rights Committee (HRC) came to the conclusion that the two rights had been violated.
How did these two human rights bodies reach such different conclusions in similar cases?
Assignment Compare and contrast S.A.S. with Yaker. There is no need to summarize the cases. Instead, isolate the key ways in which the HRC’s approach to freedom of religion diverged from the ECtHR’s. Consider particularly the level of deference to the State afforded by each body, and their diverging approaches to the legitimate aim requirement.
The European Court of Human Rights (ECtHR) unanimously ruled that a French law that prohibited the wearing of the clothing that covered the face while in public spaces was not a violation of the protected rights enshrined in the European Convention on Human Rights (ECHR). The case was brought by a French citizen and devout Muslim who sued the French government for passing the law in question. The ECtHR found no violations of Articles 8, 9, 10, and 14 of the ECHR.
The Court found that the law had the legitimate aim of ensuring the respect for the minimum requirements of life in society, namely the French principle of “living together” and recognized that countries have a wide margin of appreciation when regulating such matters.
France approved a bill that banned the wearing of the clothing that covered one’s face in public places. Even though the law employed broad, neutral language to forbid any type of clothing that concealed the face, the media often identified Muslim women who wore the niqab or the burqa as its primary target. The penalty for breaking the law was a fine of up to €150 and/or compulsory citizenship classes.
A French citizen, who was a devout Muslim and wore a burqa and niqab regularly, brought this case before the European Court of Human Rights (ECtHR). She wished to wear her niqab at her choosing, based on her spiritual feeling at the time, but she did not claim she should be permitted to keep it on at banks, during security screenings, or during other instances when identity is important or at issue.
She asserted that the ban was discriminatory under Article 14 of the ECHR and that it infringed upon the right to respect for private life, which is protected under ECHR Article 8. She also argued that the ban violated the freedom to manifest one’s religion or beliefs, protected ECHR Article 9 and that it violated the right to freedom of expression under ECHR Article 10.
The ECtHR unanimously ruled that the French law did not violate the ECHR. The French government maintained that the ban could be considered a limitation to the freedom of expression of religious beliefs, but that this was, in accordance with Article 9 (2), “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
” The ECtHR recognized that the law had the legitimate aim of ensuring respect for the minimum requirements of life in society, namely the French principle of “living together.” The ECtHR further noted that countries have a wide margin of appreciation when regulating social matters.
The ECtHR examined studies on the law’s impact and considered organizations’ views of the law, including the views of those organizations that submitted third-party interventions in the case. The organization Article 19 claimed that restrictions on the freedom of expression “cannot be justified by speculation or assumptions about their necessity to serve individual or public interests” and that the restrictions “must be supported by robust evidence.”
According to the research presented by another third-party intervener, the Human Rights Centre at Ghent University, there is no proof that a similar ban introduced in Belgium is serving its stated purposes, among which increasing public safety.
Judges Nussberger and Jäderblom submitted a dissenting opinion. According to them, the principle of “living together” is not clearly linked to the rights protected by the ECHR and thus cannot be considered a legitimate aim. Moreover, they argued that a blanket ban is a disproportionate measure and unnecessary in democratic societies. Judgments of the Grand Chamber are final and appeal is not permitted.
Reading materials for assignment: • Lecture (slides).
• HRC, General Comment No. 22, Art. 18. Freedom of thought, conscience and religion, 27 September 1993, CCPR/C/21/Rev.1/Add.4
• ECtHR, Case of S.A.S. v. France, Application No. 43835/11, 1 July 2014.
• HRC, Comm. No. 2747/2016, Yaker v. France, decision of 17 July 2018.
• Stephanie Berry, ‘The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa’, EJIL:Talk! Blog, 3 January 2019, https://tinyurl.com/y3yljne8.