Casenote: S.A.S v France

S.A.S. v France was a landmark European Court of Human Rights Case in which a woman who chose to occasionally wear a full-face veil, ‘in accordance with her religious beliefs, culture and personal convictions’[1] argued that a French law banning clothing designed to cover one’s face was contrary to various articles of the European Convention on Human Rights, notably Articles 8 and 9. While the court admitted that there was, in principle, a violation of these 2 articles, they said that this was done in accordance with the law and with a legitimate aim, namely that of ensuring ‘respect for the minimum requirements of life in society’[2]. However, allowing such a broad reason as a legitimate aim undermines articles 8 and 9 of the Convention as it essentially means that any cultural or religious practice that is both new to a country and distinct to its normal practices can be made illegal. 

Ultimately here the court allows ‘living in a space of socialisation which makes living together easier’[3] to be a legitimate aim for what would otherwise be a human rights abuse. The argument here is that, having the availability to form interpersonal relations with other people that one may see on the street is essential to an open and free society, and that the full face cover infringes on this and can therefore be banned without contravening the European Convention on Human Rights [4][5]. However, there are two main weaknesses to this argument. 

Firstly, even if one allows everything said in the argument to be true, one would be saying that the preference of certain people to socialise is more important than the rights of other individuals to private life and to religious freedom. This is wrong as the right for people to socialise is not a human right, as if it were one it would place an obligation upon individuals to communicate with others. On the other hand, the right to private life and to religious freedoms are both human rights protected in Articles 8 and 9 of the European Convention on Human Rights respectively. In other words, the freedom of people to socialise is not a sufficiently good reason to justify the removal of human rights of others as it is simply a preference compared to basic freedom that every individual should have. 

Secondly, the reason why the full-face veil is banned is that it is ultimately seen as something that would ‘manifest a refusal of the principle of living together’[6]. The French government argues that this is due to ‘the effect of concealing one’s face’[7], as the face shows one’s uniqueness. However, even if one grants that the principle of wanting a united society is a legitimate aim recognised under the Convention, there are still weaknesses that can be found in this argument. As stated by the minority in the court, before the niqab and the burka became established within France, full face veils were not considered at all to be an obstacle to social interaction, as people would wear them while skiing or in carnivals and have no problem being seen as just another member of society[8]. However, the more recent introduction of the full face veil as a piece of religious clothing[9] has provoked a more negative view of these types of coverings, leading to the belief that the covering[10] of one’s face is an obstacle to having an open and free society. Therefore, in this case, the French government’s contention is one based on a general feeling of anti-islamic sentiment, and not on a genuine preoccupation that it may be difficult to communicate with those with a full face covering on. This is further evidenced by anti islamic rhetoric around this period of French history, for instance, the Minister of the Interior Charles Guéant saying that ‘the growth in the number of muslims in France and their behaviour was posing problems’[11], by islamophobic remarks in the debate prior to the passing of this piece of legislation[12] and by polling which shows that a large majority of French citizens held views which could be considered islamophobic around the time that this act was passed, for instance, three quarters of people in France said that Islam is not compatible with French society[13]. If we allow that banning non-native religious practices because they show ‘a refusal of the principle of living together’ is valid under the European Convention of Human Rights, then there is little point in having such a document. Through this logic, any foreign religious practice that has gained public disapproval could be banned simply due to it being very distinct from native customs. The legitimisation of such a broad reason essentially allows racism and xenophobia to seep into national law with no legal consequence from the European Court of Human Rights.

Overall, the Court should not have recognised that making France a ‘space of socialisation’ is a legitimate excuse for what would otherwise be a human rights abuse. Furthermore, in allowing that the practice of muslims who choose to wear full-face coverings' beliefs shows a refusal to want to live together, the court has established that a general dislike of certain cultural or religious practices can result in a ban of said practices, which allows xenophobia to be a legitimate aim for curtailing human rights. This clearly diminishes the effect that the European Convention on Human Rights can have in actually protecting human rights. 

[1] S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), para 11

[2 ]S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), para 116

[3] S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), para 123

[4] S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), para 82

[5] S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), para 122

[6] S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), para 82

[7] S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), para 82

[8] S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), pg 63

[9] S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), para 16

[10] 'The Islamic veil across Europe' (BBCNews, 31 May 2018) <https://www.bbc.co.uk/news/world-europe-13038095> accessed 22nd November 2021

[11] 'Guéant turns spotlight on France's legal immigrants' (RFI, 7th April 2012)

[12] S.A.S. v France App no. 43835/11 (ECHR, 1 July 2014), para 149

[13] 'Islamophobia has been trivialized in France' (thelocal.fr, 15 Feb 2013) <https://www.thelocal.fr/20130215/islamophobia-has-become-trivialised-in-france/> accessed 22nd November 2021