Excerpt
Table of content
I. Introduction (Markus Preslmayr)
II. Historical aspects (Markus Preslmayr)
III. Legal developments in Europe (Markus Preslmayr)
i. France
ii. Belgium
iii. Austria
iv. Denmark
IV. Freedom of religion – International Human Rights Law (Liam Quinn)
i. Declarations
ii. Treaty Law
iii. Resolutions
iv. Human Rights Reports
v. Conclusion
V. Discussion through the lens of feminist theory (Liam Quinn)
i. Introduction
ii. Pro-ban
iii. Anti-ban
iv. Conclusion
VI. Selected case law (Markus Preslmayr)
i. S.A.S v. FRANCE
ii. BELCACEMI and OUSSAR v. BELGIUM; DAKIR v. BELGIUM
VII. Conclusion and future prospects (Preslmayr and Quinn)
Bibliography
I.Introduction (Markus Preslmayr)
The rise of religious, cultural and ethnic diversity in Europe1 has led to widespread political and social debates concerning integration, migration and freedom of religion. This phenomenon is especially visible in recent debates and subsequent legal developments regarding the ban of wearing the Islamic face-veil2 in public. The veil has become an object of discussion about gender equality, religion in the public sphere, immigration, integration and related issues.3 Laws in several countries banning the face-veil have been subject to heated debates. This paper aims to critically examine selected laws in the light of International Human Rights Law. An overview of respective Human Rights provisions governing freedom of religion will be likewise provided. Furthermore, existing case law will be discussed in the light of these findings. We will particularly consider women´s rights and provide insight into feminist theories regarding our research object. The essay will thus not be of a mere descriptive legal nature. We have decided to analyse the topic in its entirety and will therefore approach the matter in an interdisciplinary way. Despite the fact that there are comparable legal restrictions in Muslim dominated countries, the paper will – due to its limited length – focus on the issue within the European Union.
II. Historical aspects (Markus Preslmayr)
Over the last four decades, religious and ethnic minorities have become more significant for society and visible in public. The rise of minorities in Europe is closely linked to European colonialism in the past and subsequent migration from former colonies to the European continent. This can be observed particularly in France by taking a closer look at the Algerian community.4 It is mostly undisputed that European societies face struggles with the integration of Muslim minorities.5 Difficulties in integration of religious and ethnic minorities form the starting point for debates about secularity, freedom of religion and discrimination. Consequently, these debates have led to discussions about religious expression in the public space.6 Using the example of both France and Belgium, we see that legal restrictions on religious symbols and clothing worn by Muslim women were subject for discussions spanning more than two decades.7 However, the focus on the Islamic face veil is rather recent as it was in fact the Islamic headscarf standing in the centre of attention until the early post-millennial years.8 Across European countries, an unambiguous growth of restrictive measures can be observed.9 However, this development did not start with countrywide prohibitions. Before such measures were established, local bans were gradually introduced.10 Local prohibitions were introduced by Belgium, the Netherlands, Italy, Spain and Switzerland.11 The first country that drafted legislation concerning the general prohibition of face-coverings was Belgium12, albeit the French equivalent came into force just a few months earlier.13 The two “pioneers” were subsequently followed by Austria and Denmark. The respective laws will be considered and compared in the following chapter.
III. Legal developments in Europe (Markus Preslmayr)
This chapter will briefly provide an overview of the legal measures adopted by the several national legislators in a chronological sequence. As will be shown, wording and intention are indeed similar. Moreover, some background information about the legislative processes will be given if procurable.
i. France
France was the first country that imposed a ban on face covering in the public space in practice when the law entered into force on April 11th 2011.14 The previous voting in the French parliament was almost unanimous as the bill was passed by 335 votes to 1.15 The subsequent approval by the Senate was no different with only one single opposing vote.16 The French legislator, by doing so, ignored the non-binding advice of the Conseil d´État 17 declaring that there would be “no incontestable legal basis” for a general ban.18 Act no. 2010-119219 prohibits the general concealment of the face. The Act states:
Art. 1: “No one may, in spaces to the public, wear a garment that has the effect of hiding the face.
Art. 2: “Exceptions apply when clothing [is] prescribed or authorized by legal or regulatory provisions, when the clothing is justified by reasons of health or professional motives, when the clothing is part of sports activities, festivities or artistic or traditional manifestations.” 20
Compliance with this rule shall be ensured by financial sanctions of up to 150 Euros. Furthermore, offenses can be punished with a mandatory citizenship course. Art 4 furthermore includes penalties to anyone who forces another to cover their face with a fine of 30,000 Euros and a custodial sentence of one year.21
During the preliminary stages and after passing, the bill was object of a heated debate, particularly and unsurprisingly criticised by parts of the Muslim community across the world.22 The Constitutional Council23 acknowledged the constitutionality before the bill was ultimately adopted.24 The French legislator justified the law by the grounds of public security, social cohesion as well as women´s rights.25 A crucial point of criticism was the fact that the bans were to a great extent merely based on assumptions that lacked an empirical basis. In 2010, there existed no appropriate research on the motives and experiences of the women concerned.26 The French ban is criticised for neglecting the potential Human Rights aspect and, in addition to it, not involving the people concerned – that is Muslim people wearing the veil – in the legislative process.27 As part of the parliamentary debate, a Commission to study the wearing of the full facial veil in France was established. Nevertheless, the Commission hearing more than 200 experts on the matter only questioned one single Muslim women actually wearing the veil.28 Relevant critiques will be discussed in the Chapter VI: Selected case law.
ii. Belgium
First proposals on a general nationwide face veil ban in Belgium date back to 2004 when the issue was first raised by right-wing politicians.29 The idea of a general ban became more concrete between 2007 and 2010 when multiple draft proposals aiming at prohibiting the Islamic face veil in public were submitted.30 Nevertheless, the bill did not survive parliamentary approval.31 Yet, remarkable is the fact that shortly after the dissolution of the first proposal, an overwhelming parliamentary majority in a newly elected federal chamber paved the way for a countrywide interdiction.32 A bill to “institute a prohibition on wearing clothing that covers the face, or a large part of it” was finally adopted on June 1st 2011 and became operative on July 13th 2011.33 Astonishing is, in my regard, also the fact that the voting was considered a matter of urgent nature.34 Similarly to the situation in France – the demand of prohibiting legislation did not emerge from a general societal movement insisting on the urgency.35 This seems thoroughly dubious as the number of women actually wearing a face veil in Belgium was estimated to be not more than 300 in total never linked to any troubles.36 Unlike France, no external experts were involved in the parliamentary debates, neither were women wearing the veil consulted.37
The act of law from June 1st 2011 includes the new Article 563bis in the Belgian Criminal Code.38 As opposed to former local regulation, covering one´s face is thus considered a criminal offence.39 The new Article 563bis states:
“With a monetary penalty of fifteen until twenty five euro and with an imprisonment of one day until seven days or one of these punishments separately, are punished, those who, except for other different regulations, appear in the public accessible spaces with the face completely or partly covered, and as such they are unrecognizable.
The first subsection does not apply on those who appear in public accessible spaces with a partly or completely covered face, so that they are unrecognizable, and this by virtue of labour regulations or a police ordinance on account of festivities.” 40
Compared to the French equivalent, the punishment is significantly lower. The ban was judicially challenged before the Belgian Constitutional Court that upheld the law multiple times.41 The wording is – corresponding the French equivalent – written in a neutral way as it does not explicitly mention the “burqa” or other Islamic garments. Yet, it undoubtedly targets the burqa.42
iii. Austria
To cover one´s face in public and thus wearing a face veil is illegal in Austria since October 1st 2017. The “anti-face cover law” (Anti-Gesichtsverhüllungsgesetz) was initiated by the coalition of conservative and labour party and subsequently passed by the national parliament on June 8th 2017.43 The act of law was part of comprehensive legislation following the purpose of improving integration.44 The declared objective of the law is the enhancement of participation in society as well as protection of a peaceful coexistence.45 The ban was further justified by the assumption that “inter-personal communication would be impossible without facial communication”.46 As will be shown in Chapter VI, the Austrian legislator thereby took advantage of previous judicial rulings. The ban was heavily criticised by various Human Rights experts and organisations due to serious doubts about Human Rights conformity as well as misconduct of the contended aim.47
The recent legislation prohibits “to veil one´s facial traits by use of any clothing in public spaces and public buildings”. A violation can be punished with a fine of up to 150 Euros.48 There are – comparable to French and Belgian laws – exceptions for coverings that fall within the scope of “artistic, cultural or traditional events or for the purpose of the exercise of sports as well as veils worn for professional or health reasons”.49
iv. Denmark
Denmark is the first Scandinavian country and the latest European state that passed a law that criminalises to cover the face in public. The members of the Danish parliament voted in favour of the draft by the centre-right government on May 31st 2018 with 75 affirmative votes and 30 negative.50 The countrywide prohibition entered into force on August 31st 2018 and infringement is punishable with a fine of 1.000 Danish Kroner for first time offences.51 The Danish ban is technically not targeting specific religions or types of garments and thus follows a similar legal approach compared to the prior described laws dealing with the issue.52
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1 Melanie Adrian, Religious Freedom at Risk - The EU, French Schools, and why the veil was banned (8 edn, Springer Switzerland 2016) 45.
2 The face veil is a garment worn by Muslim women in some Islamic traditions to cover their body and face. The term will later also be referred to as „burqa“. The “burqa” is yet often confused with the “niqab” which usually leaves the eyes out and is more present in Europe than the “burqa”.
3 Melanie Adrian, Religious Freedom at Risk - The EU, French Schools, and why the veil was banned (8 edn, Springer Switzerland 2016) 45.
4 Melanie Adrian, Religious Freedom at Risk - The EU, French Schools, and why the veil was banned (8 edn, Springer Switzerland 2016) 45.
5 Eva Brems, 'Face veil bans in the European Court of Human Rights: The importance of empirical findings' [2014] 22 Journal of Law and Policy 517-551.
6 Eva Brems, 'Face veil bans in the European Court of Human Rights: The importance of empirical findings' [2014] 22 Journal of Law and Policy 517-551.
7 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 1.
8 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 1.
9 Eva Brems, 'Face veil bans in the European Court of Human Rights: The importance of empirical findings' [2014] 22 Journal of Law and Policy 517-551.
10 Eva Brems, 'Face veil bans in the European Court of Human Rights: The importance of empirical findings' [2014] 22 Journal of Law and Policy 517-551.
11 Eva Brems, Introduction to the volume. in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 4-6.
12 Loi visant à interdire le port du tout vêtement cachant totalement ou de manière principale le visage (June 1st 2011), MONITEUR BELGE, July 13th 2011, <http://www.staatsblad.be> ; Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 8-9.
13 Loi 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l´espace public, JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O], October, 11th 2010 <http://www.journal-officiel.gouv.fr>.
14 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 6-7.
15 Steven Erlanger, 'Parliament Moves France Closer to a Ban on Facial Veils' (New York Times , 13 July 20100) <https://www.nytimes.com/2010/07/14/world/europe/14burqa.html> accessed 15 December 2018; Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 7.
16 CNN Wire staff, 'French Senate approves burqa ban' (CNN, 14 September 2010) <http://edition.cnn.com/2010/WORLD/europe/09/14/france.burqa.ban/?hpt=T1> accessed 15 December 2018.
17 The Counseil d´État (Council of State) is a body of the French parliament that is empowered to legally counsel over the course of the legislation process.
18 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 7-8.
19 République Française, 'LOI no 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l'espace public' (Legifrance, 12 October 2010) <https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000022911670> accessed 15 December 2018.
20 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 8; for the full text see Assemblée nationale, 'TEXTE ADOPTÉ n° 524' (Assemblée nationale, 13 July 2010) <http://www.assemblee-nationale.fr/13/ta/ta0524.asp> accessed 15 December 2018.
21 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 8.
22 See e.g. Dana Kennedy, 'Muslim World at Odds Over French Burqa Ban' (AoL News, 17 September 2010) <https://web.archive.org/web/20100917002953/http:/www.aolnews.com/world/article/muslim-world-at-odds-over-french-burqa-ban/19634944> accessed 15 December 2018.
23 The Constitutional Council is the highest constitutional authority in France.v
24 Conseil constitutionnel, October 7th 2010, no. 2010-613 DC.
25 Saïla Ouald Chaib, Eva Brems, 'Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe' [2013] 2(1) Journal of Muslims in Europe 1-26.
26 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 2-3.
27 Saïla Ouald Chaib, Eva Brems, 'Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe' [2013] 2(1) Journal of Muslims in Europe 1-26.
28 Maleiha Malik, The return of a persecuting society? Criminalizing facial veils in Europe, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 236.
29 Marie Haspelagh, 'The Belgian burqa ban - Unveiled from a human rights perspective' (University Library Ghent, 13 May 2010) <https://lib.ugent.be/fulltxt/RUG01/001/892/123/RUG01-001892123_2012_0001_AC.pdf> accessed 16 December 2018.
30 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 8.
31 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 8-9.
32 Nadia Fadil, Asserting State Souvereignty: The face veil ban in Belgium, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 253.
33 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 9; Edward Cody, 'Belgian lawmakers vote to ban full-face veils in public' (The Washington Post, 30 April 2010) <http://www.washingtonpost.com/wp-dyn/content/article/2010/04/29/AR2010042904504.html> accessed 16 December 2018.
34 Emanuelle Bribosia and Isabelle Rorive, Insider perspectives and the Human Rights debate on face veil bans, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 165.
35 Maleiha Malik, The return of a persecuting society? Criminalizing facial veils in Europe, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 235.
36 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 1.
37 Maleiha Malik, The return of a persecuting society? Criminalizing facial veils in Europe, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 236.
38 Eva Brems, Introduction to the volume, in Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press 2014) 9.
39 Marie Haspelagh, 'The Belgian burqa ban - Unveiled from a human rights perspective' (University Library Ghent, 13 May 2010) <https://lib.ugent.be/fulltxt/RUG01/001/892/123/RUG01-001892123_2012_0001_AC.pdf> accessed 17 December 2018.
40 Translation from Marie Haspelagh, 'The Belgian burqa ban - Unveiled from a human rights perspective' (University Library Ghent, 13 May 2010) <https://lib.ugent.be/fulltxt/RUG01/001/892/123/RUG01-001892123_2012_0001_AC.pdf> accessed 17 December 2018.
41 See for instance Belgian Constitutional Court, Dezember 6th 2012, no. 145/2012; Marie Haspelagh, 'The Belgian burqa ban - Unveiled from a human rights perspective' (University Library Ghent, 13 May 2010) <https://lib.ugent.be/fulltxt/RUG01/001/892/123/RUG01-001892123_2012_0001_AC.pdf> accessed 17 December 2018.
42 Eva Brems, Hilde Van Gelder, Engaged Visual Art as a Tool for Normative Renewal in International Human Rights: The Case of Ariella Azoulay’s Potential History (2012) in Reinisch and others (eds), International Law and …: Select Proceedings of the European Society of International Law (Bloomsbury Oxford 2016) 463–474.
43 Bundesgesetz über das Verbot der Verhüllung des Gesichts in der Öffentlichkeit (AGesVG), BGBl. I Nr. 68/2017.
44 Elisabeth Holzleithner, 'Zum Verbot der Gesichtsverhüllung in Österreich - eine rechtliche Farce ' [2018] 27(1) Femina politica 127-133.
45 § 1 AGesVG.
46 Elisabeth Holzleithner, 'Zum Verbot der Gesichtsverhüllung in Österreich - eine rechtliche Farce ' [2018] 27(1) Femina politica 127-133.
47 See for instance Amnesty International, 'Stellungnahme zum vorliegenden Entwurf - Anti-Gesichtsverhüllungsgesetz' (Amnesty International, 7 March 2017) <https://www.amnesty.at/media/2058/stellungnahme-zum-anti-gesichtsverhuellungs-gesetz.pdf> accessed 20 December 2018.
48 § 2 (1) AGesVG.
49 § 2 (2) AGesVG.
50 Die Welt, 'Dänemark verbietet Burka und Nikab in der Öffentlichkeit' (Welt, 31 May 2018) <https://www.welt.de/politik/ausland/article176843337/Neues-Gesetz-Daenemark-verbietet-Burka-und-Nikab-in-der-Oeffentlichkeit.html> accessed 22 December 2018.
51 BBC News, 'Denmark passes ban on niqabs and burkas' (BBC News, 31 May 2018) <https://www.bbc.com/news/world-europe-44319921> accessed 22 December 2018.
52 BBC News, 'Denmark passes ban on niqabs and burkas' (BBC News, 31 May 2018) <https://www.bbc.com/news/world-europe-44319921> accessed 22 December 2018.