Balancing Competing Interests: Muslim Women v. the European States

The aim of this post is to examine whether, under Article 9 of the European Convention on Human Rights (‘ECHR’), a balance can be done between the right to wearing of religious clothing in public places (particularly, burqa and niqab) and the right of States to set a pluralist and democratic society. It further concludes that a successful balance can be done based on this provision, although the outcome might be influenced by the historical and cultural background of the European States.

Article 9 of the ECHR ensures everyone the “freedom of thought, conscience and religion” which includes, inter alia, the freedom of manifest the own religion either alone or in community with others and in public or private.[1] It also includes the right not to act contrary to one’s conscience and convictions and the right to wear religious clothing and symbols.[2] Furthermore, States must ensure this right to everyone within their jurisdiction,[3] remain neutral and impartial,[4] refrain from interference in its exercise or provide a legal justification thereof, and refrain from interference in intra or inter-denominational conflicts.[5]

Consequently, the right to manifest one’s beliefs is not an absolute one, and it can be subjected to limitations as long as they fulfil the conditions set in Article 9(2).[6] According to this provision, any limitation shall be prescribed by law and be 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.[7] It is precisely this test the one applied by the European Court of Human Rights (‘ECtHR’) when balancing interests related to the freedom of religion.[8]

However, at first glance, it can be noticed that the wording of this provision is vague and ambiguous, and what is considered as “necessary in a democratic society” usually drives to philosophical debates in which a unique answer cannot be reached. It is, therefore, the role of the ECtHR to decide whose interests should be granted more weight on a case-by-case basis, since the rules in this sphere rely upon the specific domestic context.[9]

The ECtHR has exclusively decided whether the ban on wearing clothing designed to conceal one’s face in public places violates Article 8, 9, 10 and 14 ECHR in the case of S.A.S. v France.[10] In this regard, the French national ban on the wearing of burqa and niqab in public places was considered legitimate and justified as far as it seeks to guarantee the conditions of “Vivre ensemble” as an element of the “protection of the rights and freedoms of others”.[11] Yet, this decision outlines further interests at stake beyond the freedom of religion in the abstract.

On one side, Muslim women wear the full-face veil as an important part of their social and cultural identity.[12] Indeed, to force them to remove this clothing might lead not only to intersectional discrimination against Muslim women (in a violation of Article 14 ECHR),[13] but also to the reinforcement of negative stereotypes and Islamophobia that could lead to their exclusion and alienation of European societies.[14]

On the other hand, States usually allege national security interests to justify the interference to this right, even though the ECtHR has stated that it cannot be used as the sole basis for this aim.[15] Additionally, they have interest in preserving the respect for the “minimum set of an open and democratic society”, linked to the observance of the minimum requirements of life in society, the equality between men and women and the respect for human dignity.[16]

In this line, the ECtHR has afforded States with a wide margin of appreciation to enact any law necessary to limit the wearing of burqa and niqab,[17] but in hand with a European supervision of both the kind of laws and the decisions applied.[18] For this reason, when assessing the French law and applying the test within Article 9(2) ECHR, the ECtHR concluded that the right to others to live in a space of socialization which makes “living together” easier was the prevalent interest; but it also pointed out that no State can assess the legitimacy of religious beliefs or the way they are expressed,[19]  and that a fair treatment of people from minorities shall be ensured in order to avoid any abuse of dominant position.[20]

In conclusion, States that banned the use of burqa and niqab based their argumentations in a model of a society deeply rooted in the cultural tradition of secularism of Western Europe (as opposed to the model held by Muslims, in their majority immigrants) that unsurprisingly has been followed by the ECtHR.[21] Notwithstanding, Article 9 ECHR presents a mechanism for balancing clashing interests and provides the ECtHR with the opportunity to adjust those to any given context through flexible interpretation. The fact that the outcome of this balancing does not satisfy our ideological preferences, does not mean that Article 9 does not enable the balance of both-side interests when interpreting and applying it.

[1] Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14 (‘ECHR’) [1950] ETS No.005, Article 9(1).

[2] European Court of Human Rights (‘ECtHR’) Guide to Article 9 (2015) [18]-[37].

[3] ECHR, Article 1.

[4] ECtHR (fn 2) [37].

[5] Ibid [168].

[6] Ibid [23].

[7] ECHR, Article 9(2).

[8] In this regard, Leyla Şahin v. Turkey [GC], no. 44774/98, ECHR 2005-XI [110], Biblical Centre of the Chuvash Republic v. Russia, no. 33203/08, 12 June 2014 [58], between others.

[9] Leyla Şahin v. Turkey (fn 8) [109].

[10] S.A.S v France [GC], no. 43835/11, ECHR 2014.

[11] S.A.S. v France [157].

[12] Ibid [79].

[13] Ibid, intervention of ARTICLE 19 [92]-[94].

[14] Ibid, intervention of Human Rights Centre of Ghent University [98].

[15] ECtHR (fn 2) [31].

[16] S.A.S. v France, Explanatory Memorandum of the Bill’s transcription [25] and Judgment of the Belgian Constitutional Court of 6 December 2012 B.21.

[17] S.A.S. v France, [129].

[18] Ibid [131].

[19] Ibid [55].

[20] Ibid [128].

[21] See the cases of France, Belgium and Austria.