In a blog post yesterday, I considered the impact which the recent decisions of the European Court of Human Rights in Dakir v. Belgium and Belcacemi and Oussar v. Belgium might have on the Court’s conception of “living together”. Today, I will consider the concerns these judgments raise for the Court’s jurisprudence on indirect discrimination and the proportionality test.  

The Problematic Avoidance of the Indirect Discrimination Claims

In Dakir, Belcacemi, and SAS v France, the Court was faced with the claim that bans on the burqa/niqab are a violation of Article 14 ECHR, which prohibits discrimination. At first sight, the claim that banning face covering is indirectly discriminatory against Muslim women seems to be a strong one. Additionally, it is clear that, in both France and Belgium, the bans on the niqab place those Muslim women who wish to wear a full veil, and only them, at a particular disadvantage (as has been shown by empirical studies by the OSJI on France or researchers from the Ghent Human Rights Center).

The European Court of Human Rights, however, did not accept this line of argument. It held that the concept of indirect discrimination can apply only if the policy or measure that is thought to produce disproportionately prejudicial effects on particular group “has no “objective and reasonable” justification, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realized” (SAS v. France, §161). Based on that principle, the Court upholds the bans, precisely because it has previously found them to pursue “objective and reasonable justifications” in encouraging “living together”. This mode of reasoning can, however, be criticized as somewhat tautological and threatening to the very relevance of the concept of indirect discrimination in human rights law adjudication. It precludes any possibility of finding that a measure or policy that is justifiable vis-à-vis human rights standards in general has discriminatory effects. In other words, the very moment any given measure or policy appears to pursue a legitimate aim, all arguments pertaining to its actual discriminatory impact become void and irrelevant.

Such a legal state of affairs confirms the highly uncomfortable position in which European law is progressively cornering Muslim believers –and Muslim female believers in particular. Recent developments at the Court of Justice of the European Union (CJEU, Grand Chamber, 14 March 2017, Asma Bougnaoui & ADDH v. Micropole SA, C-188/15; and CJEU, Grand Chamber, 14 March 2017, Samira Achbita & Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV, C-157/15) seem to have rested on the notion that not all restrictions on religious freedom are discriminatory. Combined with the Strasbourg approach to burqa bans, the situation currently is one in which bans on face covering can only amount to indirect discrimination where they also fail to pass the proportionality test in Article 9(2). This leaves observant female Muslims largely unprotected by Article 14.

Proportionality and Polities

Last but not least, the Court was faced with the issue of proportionality. The Belgian ban that was being challenged provided for two possible levels of sanction in case of violations: first, a fine and then (in case of repeated offences), a jail sentence of up to 7 days. The French law challenged in SAS did not provide for any form of imprisonment. This further step walked by the Belgian legislator did not unsettle the Strasbourg court. Strikingly, all the developments pertaining to the proportionality of the ban are infused with references to the necessary restraint of the Court, the Convention’s subsidiary role (§54), the respect that needs to be paid to national authorities who are the only ones vested with direct democratic legitimacy (§54) and the very wide margin of appreciation of the State that ensues (§59).

That the Court would have so little to say about a ban that may lead Muslim women of strict observance to jail is not only striking but untimely. Contemporary times seem to be marked by a high-water mark of measures that result in excluding groups of people from the public space –a policy trend that seems at odds with the very purpose of human rights law. In a remarkable transversal and comparative book on this particular policy trend, Swiss legal scholar Daniel Moeckli demonstrates that shifts pertaining to both the privatization of public space and increased regulation thereof in relation with the emergence of a “security society” have led countries such as the UK, the USA or Switzerland to enact numerous laws and regulations that tend to expunge the public space from all those who stain its image and appearance as a sanitized, safe and discomfort-free space. Although the book does not (regrettably) include face veil bans in the scope of the inquiry, it is very tempting to view them as an additional ramification of the daunting exclusionary paradigm that the author astutely describes as taking over the policies in various Western countries. This, in turn, only reinforces the need to rethink the meaning of face veil bans and other measures that rest on the exclusion of new categories of “undesirables” with respect to what they say and reveal of our contemporary polities.