The European Court of Human Rights (ECtHR) has unanimously held that a ban on wearing partial or full facial coverings in public does not constitute a violation of the European Convention on Human Rights (ECHR).
The applicants in the matter, Ms Samia Belcacemi and Ms. Yamina Oussar, had brought an action before the Belgian Constitutional Court in 2011 seeking the annulment of the ban. It was argued that the ban placed an unfair restriction on the private and social lives of the applicants who choose to wear the niqab (a veil which covers the entirety of the face with the exception of the eyes) on account of their religious convictions as Muslims. The ban, they set out, left them fearful of publically expressing their faith and restricted them in their ability to leave their homes while exercising their choice to wear the veil. Following the dismissal of that action, the applicants took the matter before the ECtHR where they argued that the ban constituted a violation of their ECHR rights under Articles 8 (right to respect for private and family life), 9 (freedom of thought conscience and religion) and 14 (prohibition of discrimination) of the ECHR.
Relying on their previous decision in S.A.S. v France the Court found that, like the ban on facial coverings considered in that case, the Belgian law was justified because it sought to vindicate the principles necessary for societal cohesion referred to as the conditions of “living together”. The Court emphasised that State authorities are better placed than an international court to assess the measures needed to ensure the prevalence of such conditions and thus set out that in such matters it was necessary for the Court to show reserve in their scrutiny of Convention compliance.
In the matter at hand, then, it was decided that the Belgian State, given their direct and constant interactions with the stakeholders involved, were best placed to decide whether a practice was compatible with Belgian society. It was therefore noted that the decision-making process leading to the ban had been marked by comprehensive debate and detailed examinations of the concerns of relevant interest groups. In response to the applicants contentions that the ban left them fearful of facing a prison sentence as a result of their wearing the niqab, the Court was satisfied that the ban was treated partly as an administrative matter by the Belgian authorities and that, as a result, the majority of sanctions applied in regard to breaches of the ban took the form of fines with prison sentences only being applied in the case of repeated offences and not on an automatic basis.
The Court concluded their judgment by reiterating that a policy or measure with disproportionate prejudicial effects on a person or group of people could be found to be discriminatory under the ECHR where it did not have a reasonable or objective justification. However, the measure in question was seen to be proportionately related to a “legitimate aim” and could therefore “be regarded as necessary in a democratic society”.
Click here for the judgement in Belcacemi and Oussar v Belgium.
Click here for a full copy of the press release issued by the Registrar of the Court.