By: Adam DiSimine, Junior Research Associate, PILPG-NL
Through a narrow but binding vote by referendum last month, Swiss citizens passed a call for a measure banning the wearing of full-face coverings in public places. The ban has been described by some as an attack on Muslim women. In fact, Amnesty International called the ban discriminatory, alleging that it violates women’s rights to freedom of expression and religion. The government will now have two years to prepare a law to implement the measure. As lawyers and policymakers work to draft a piece of legislation in the coming months, they may look to prior cases before the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC). This post will look at two such cases brought against France for a similar ban on face coverings and identify the considerations weighed by these bodies when determining such a ban’s legal status. It is important to note, legal compliance is only one of several factors relevant for contextualizing this issue. Placing the ban in a broader setting is essential to understand its causes and effects.
The French Ban
In April 2011, France became the first European state to legislatively ban full-face coverings in Europe. Following the enactment of the law, three cases were brought that challenged its validity - one before the ECtHR and two before the UNHRC. In S.A.S. v. France, the ECtHR ruled that the ban on face coverings was compliant with the European Convention on Human Rights (ECHR). Conversely, in Yaker v. France and Hebbadi v. France, the UNHRC found that the ban constituted a violation of the prohibition of discrimination based on gender and religion under the International Covenant on Civil and Political Rights (ICCPR). As Switzerland is a party to the ECHR, it may be possible for applicants to bring a similar case against Switzerland before the ECtHR. Switzerland has not ratified the optional protocol to the ICCPR and so a case cannot be brought before the UNHRC in this instance, but its rulings help inform Swiss obligations under the ICCPR nonetheless.
S.A.S. v France
In S.A.S. v. France, the ECtHR found that, while the French ban impaired the rights of women, who wish to wear a face-covering for religion, to private life, and to manifest religion, it did not violate the ECHR. In fact, the ban was a necessary and proportionate measure in pursuit of preserving the conditions of “living together” under the exception of “protection of the rights and freedoms of others”. While acknowledging that the ban had a broad scope (as it applied to all public places), the ECtHR noted that the ban did not forbid wearing other types of religious clothing and that sanctions connected with violating the ban were “among the lightest that could be envisaged”. As a result, the ECtHR focused much of its decision considering whether the limitation was a necessary and proportionate restriction. Factors that were relevant when making its determination included both - the nexus of the ban with religion and the nature of the penalties to be imposed for non-compliance. The ECtHR is likely to engage in a similar analysis if called on to evaluate the Swiss ban.
Yaker v. France
In Yaker v. France (and similarly in Hebbadi v. France), the UNHRC determined the ban discriminated against Muslim women based on gender and religion. The UNHRC came to this finding due to the ban’s negative effects on Muslim women based on a distinction that was neither necessary nor proportionate to a legitimate interest. In reaching its decision, the UNHRC noted two relevant factors. First, there were several exceptions to the ban, so the ban was effectively focused on Muslim face coverings (and in practice, it had primarily been enforced against Muslim women). Here, the UNHRC focused on the actual effects of the ban and its real-world implications. Second, criminal penalties were applied for violations of the ban. The use of criminal sanctions, sometimes on multiple occasions, was found to be a disproportionate punishment for violations of the law. When assessing whether a limitation is proportionate under the ICCPR, the UNHRC evaluated the discriminatory effects by virtue of the exceptions to the law. In addition, just as in S.A.S. v. France, the UNHRC has shown that the nature of the penalties imposed in the event of non-compliance with the ban will be a factor when assessing proportionality.
Conclusion
It remains to be seen what form the new Swiss legislation implementing the ban on full-face coverings will take following the referendum. As particulars are negotiated and drafted in the near future, a close examination of the factors considered by the ECtHR and UNHRC provide guidance on the form such a ban will need to take in order to have a chance at being compliant with the ECHR and ICCPR.