S.A.S. V. France: A Reality Check

By Brems, Eva | Nottingham Law Journal, Annual 2016 | Go to article overview

S.A.S. V. France: A Reality Check


Brems, Eva, Nottingham Law Journal


INTRODUCTION

In the debate on 'burqa bans' in Europe, the Grand Chamber judgment of SAS v France of the European Court of Human Rights has become a central reference point. The judgment, which dates from 1 July 2014, has been the subject of a great number of comments, from scholars as well as human rights organizations. The large majority of these comments have criticized the judgment, finding it deficient in the light of the author's theory or understanding of minority protection, religious freedom, gender equality, individual autonomy, social cohesion or multicultural tolerance. (1) The current contribution provides another critical comment of SAS. This paper will attempt to examine the judgment from the perspective of the persons who are most directly affected by it, i.e. women who wear or wish to wear a face veil in Europe, yet who live in a place where a face covering ban is in effect. Today, nationwide face covering bans exist in France (2) and Belgium. (3) In addition, a regional ban was adopted in the Swiss canton of Ticino and municipal bans are in place in municipalities in the Netherlands, Spain and Italy. (4) Currently, two applications challenging the Belgian face covering ban are pending before the European Court of Human Rights. (5) While it is not completely excluded that the European Court might distinguish these cases from SAS (see infra), there is no doubt that currently, the Grand Chamber judgment of SAS provides legal and political shelter to all existing face covering bans across Europe, as well as to any that might still be in the pipeline. (6)

The paper will draw on empirical research based on interviews with women who wear/wore a face veil in Belgium and France. It will rely most heavily on the interviews undertaken in Belgium by the author's own research team. This consists of 27 interviews conducted between September 2010 and September 2011 and 2 focus group discussions in April and May 2012. (7) About half of the women were interviewed before the introduction of the nationwide ban, and half after. It should however be born in mind that in Belgium, the nationwide ban was preceded by municipal bans, with which nearly all of these women had been confronted. Information from the analysis of the Belgian interviews will be complemented by the findings of similar research that was undertaken in France by Open Society Foundations. This consists of two studies. The first study, that was undertaken before the entry into force of the French ban, consists of 32 interviews conducted between October 2010 and January 2011, mainly in Paris, Lyon, Avignon and Marseille. (8) The follow-up study is based on interviews conducted in August-September 2013 with 35 women, 14 of which were also interviewed in the first study. (9) This study was particularly aimed at documenting the effects of the ban on the lives of these women.

In other publications, I have confronted the findings from this empirical research with the motivations underlying the adoption of the Belgian and French face covering bans, as stated in the parliamentary travaux preparatoires, (10) and with the reasoning of the Belgian Constitutional Court, (11) and have argued why it would be important for the European Court of Human Rights to take such findings into account in its ruling in SAS. (12) This project of a mediated dialogue between face veil wearers and those who decide on their right to cover their face, would not be complete without the final stage, i.e. a confrontation of the face veil wearers' realities with the reasoning of the Grand Chamber, that had the final say in the face covering saga. Such confrontation is the main purpose of the present paper. In addition, the final section of the paper will look ahead and speculate about whether the Court might use the opportunity of the pending Belgian cases to clarify or adjust some of its discourse in SAS.

A BRIEF PRESENTATION OF THE CASE

The applicant in S. …

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