Public order v. Individual freedom?

Similar documents
The rights of denominational schools in Irish and international law

Religious symbols in the public school classroom: a new way to tackle a knotty problem Zoethout, C.M.

DISCRIMINATIONS RELIGIEUSES SUR LE LIEU DE TRAVAIL

Decision n DC of November 19th The Treaty establishing a Constitution for Europe

IN THE EUROPEAN COURT OF HUMAN RIGHTS Application No: 4619/12. WRITTEN SUBMISSIONS ON BEHALF OF LIBERTY (Intervener)

STEERING COMMITTEE FOR HUMAN RIGHTS (CDDH) COMMITTEE OF EXPERTS FOR THE DEVELOPMENT OF HUMAN RIGHTS (DH-DEV)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Battlefield: Islamic Headscarves. Doutje Lettinga & Sawitri Saharso VU Amsterdam/University of Twente Enschede, The Netherlands

Democracy. I CAN define Democracy, and identify it by:

VIEWS. Communication No. 931/2000. Ms. Raihon Hudoyberganova (not represented by counsel) Date of adoption of Views: 5 November 2004

Human rights an introduction

Left Hanging: The Crucifix in the Classroom and the Continuing Need for Reform in Italy

Douwe Korff Professor of International Law London Metropolitan University, London (UK)

Communication No. 931/2000 : Uzbekistan CCPR/C/82/D/931/2000. (Jurisprudence) Views of the Human Rights Committee under

RECEPTION OF MIGRANTS: MATERIAL AND PROCEDURAL GUARANTEES FOR SETTLED MIGRANTS. Intervention by Christoph Grabenwarter

HOW DO THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS PROTECT RIGHTS WITHIN THE JUDICIAL SYSTEM?

Constitution of the Republic of Iceland *

CONSTITUTION OF THE REPUBLIC OF ICELAND 1 (No. 33, 17 June 1944, as amended 30 May 1984, 31 May 1991, 28 June 1995 and 24 June 1999)

It is our view that legislation restricting the wearing of full face coverings, including the

Ch 10 Practice Test

UPR Submission France June 2012

Act pertaining to the Opening up to Competition and the Regulation of Online Betting and Gambling.

The "Margin of Appreciation" and Freedom of Religion: Between Treaty Interpretation and Subsidiarity

STRENGTHENING SUBSIDIARITY: INTEGRATING THE COURT S CASE-LAW INTO NATIONAL LAW AND JUDICIAL PRACTICE

COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS

CAUSE NUMBER 00 THE STATE OF TEXAS IN THE COUNTY CRIMINAL V. COURT AT LAW NUMBER 00 DEFENDANT OF HARRIS COUNTY, TEXAS

NATIONAL HEARING QUESTIONS ACADEMIC YEAR

2015 ICCB and CAIT i-pathways.org 1 The GED Mark is a registered trademark of the American Council on Education.

3rd Nine Weeks. Student s Name: School: Core Teacher: Block: Gifted Resource Teacher:

American Constitution Society of the University of Wisconsin Law School Constitution. Article I

COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURTOFHUMAN RIGHTS

France Baker & McKenzie SCP

CAMMUN 18 UNHRC The Question of Freedom of Journalists

Chapter 10: The Judiciary

Prison Reform Trust response to the Commission on a Bill of Rights discussion paper, Do we need a UK Bill of Rights?

The Impact of the EU Charter on Fundamental Rights University of Kent 7 December 2017

GOVT International Relations Theory Credits: 3 (NR)

Appendix C SCPS - Civics EOC Review Guide. Congress. Makes Laws (House of Representatives and Senate) Executive Branch

Global Justice. Course Overview

Statewatch Report. Consolidated agreed text of the EU Constitution. Judicial Provisions

ENSURING COHERENCE IN FUNDAMENTAL LABOR RIGHTS CASE LAW: CHALLENGES AND OPPORTUNITIES

EUROPEAN COURT OF HUMAN RIGHTS. Press release issued by the Registrar. CHAMBER JUDGMENT IN THE CASE OF PRETTY v. THE UNITED KINGDOM

THE PROTECTION OF HUMAN RIGHTS WITHIN THE EUROPEAN COOPERATION OF COURTS. Venice, Italy, 9 March Paper presented to the Venice Commission

Contract Enforcement and Judicial Systems in Central and Eastern Europe Warsaw, Poland, June Turkey

STATE HEARING QUESTIONS

History (Exam Board: AQA) Linear September 2016

French citizens elected Emmanuel Macron as their new President yesterday. This election

Preventing Extremism and Radicalisation Safeguarding Policy

HEARING QUESTIONS CONGRESSIONAL DISTRICT LEVEL. Unit One: What Are the Philosophical and Historical Foundations of the American Political System?

Chapter 7 Public Opinion

ANTI-TERROR LAW [TERRORLAW] Act No. 3713: LAW TO FIGHT TERRORISM [Published in the Official Gazette on 12 April 1991]

Nationalism movement wanted to: UNIFICATION: peoples of common culture from different states were joined together

EUROPEAN COURT OF HUMAN RIGHTS. Press release issued by the Registrar. CHAMBER JUDGMENT STEEL AND MORRIS v. THE UNITED KINGDOM

The idea of the Preamble has been borrowed from the Constitution of USA. Preamble refers to the introduction or preface of the Constitution.

Chapter 5: Political Parties Section 1

The Enlightenment in Europe

THE ENLIGHTENMENT IN EUROPE

Chapter 6 Democratic Regimes. Copyright 2015 W.W. Norton, Inc.

CRIMINAL LAW REFORM BY THE NEW CODES

COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS SECOND SECTION. CASE OF TÜM HABER SEN AND ÇINAR v. TURKEY

INTER-RELIGIOUS COUNCIL OF UGANDA. RELIGIONS FOR PEACE 9 th WORLD ASSEMBLY VIENNA, REPUBLIC OF AUSTRIA

CASE OF LEYLA ŞAHİN v. TURKEY. (Application no /98) JUDGMENT STRASBOURG. 29 June 2004 THIS CASE WAS REFERRED TO THE GRAND CHAMBER,

Queen's University Belfast - Research Portal: Link to publication record in Queen's University Belfast Research Portal

European Convention on Human Rights

Published in: Human Rights Law Review

The Conference of International Non-Governmental Organisations (INGOs) of the Council of Europe,

Enhancing the effectiveness of ECHR system at national level

IN THE EUROPEAN COURT OF HUMAN RIGHTS. EWEIDA AND CHAPLIN v UNITED KINGDOM SUBMISSION OF THE EQUALITY AND HUMAN RIGHTS COMMISSION

Annexure D. Political Parties (Registration and Regulation of Affairs, etc.) Act, 2011

Teddington School Sixth Form

Liberals (aka the Left)

Overview ECHR

Written evidence to the Justice Committee. Scottish Human Rights Commission. November 2017

The Concept of Genuine Occupational Requirement

epp european people s party

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community

Know and Exercise Your Rights! Steps to Prepare for the Potential Impact of the Trump Administration on Immigrant and Refugee Communities

SCPS - Civics EOC Review Guide

Know Your Rights: A Webinar For Refugees and Advocates. May 17, 2017

PREVENTING RADICALISATION (411d)

Consolidation Act on the Prohibition of Differences of Treatment in the Labour Market etc. 1)

European Convention on Human Rights

Ban on the Hijab at School: Human Rights Against Migration Background

R E S P O NS E OF THE OF

Donaldson v United Kingdom: No Right

investigation into the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances; a continuing

NEW TRENDS IN RELIGIOUS FREEDOM: THE BATTLE OF THE HEADSCARF. Natalie Melmore 1

Religious Non-State Actors and Development

Delegations will find the text of this Resolution in annex II and are invited to present their comments at the COPEN meeting of 28 May 2014.

Reports of Cases. JUDGMENT OF THE COURT (Grand Chamber) 14 March 2017 *

Official Journal C 195, 25/06/1997 P

Topic 3: The Roots of American Democracy

Complexities of migration, radicalism and education. Ali A. Abdi University of British Columbia

Constitutional Declaration 8 July 2013 [unofficial translation] Table of contents

BLOOM PUBLIC SCHOOL Vasant Kunj, New Delhi Lesson Plan Subject: Political Science. Month: April No of Periods: 19

Learning together, living together with a focus on positive identity. Webinar Berlin 18 april 2016 Karin Heremans

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2017 H 1 HOUSE BILL 186. Short Title: Repeal HB2/State Nondiscrimination Policies.

The Bill of Rights. If YOU were there... First Amendment

ANTI-RADICALISATION / PREVENT POLICY

Unit 4 Assessment Amending the Constitution

Transcription:

«Banning Burqas» Public order v. Individual freedom? François H. BRIARD Supreme Court Attorney France A lecture sponsored by THE FEDERALIST SOCIETY On April 11th, 2011, face concealment in French public space will be a criminal offense

Five preliminary requirements 1. The French respect and protect religious freedom; 2. The new law is related to face concealment, not to religion; 3. The law was almost unanimously approved; 4. The law has nothing to do with secularism which is a duty for the Goverment only; 5. BRIARD is respectful to individual freedom and beliefs.

Where does the statute come from? What does it say? Where does it go?

Why such a law?

99% of the French Muslims are moderate-modern and well integrated

Daily life in France? Lyon, 2010

The Burqa is not welcome in France Nicolas SARKOZY June 2009

Jean-François COPE leader on the ban

No one in public space is allowed to be dressed in a way to conceal the face

Calendar 2009-2010 for the face concealing ban The law will become enforceable on April 11, 2011 Step 1: special mission to investigate and hearing, June 2009; Step 2: legal opinion of the Council of the State: quite against general ban but thought mainly to public order as a possible way, March 2010; Step 3: unanimous vote of the French Parliament in favor of Republican values, May 2010; Step 4: debate and vote of the law: general ban, June 2010; Step 5: green light of the Constitutional Court, except for places of worship. October 2010.

WHAT DOES THE LAW SAY? No one shall hide his-her face in public space, i.e public ways and all premises open to the public or used for government purposes; Some legal exceptions; Punishment: fine (150 uros) and-or citizenship training; Very pedagogic and moderate intructions given by the Prime Minister to enforce the law.

No face concealing in public space

Simple fine, 150 uros and-or public service duty, no custody

30.000 uros fine and 1 year in jail for anyone forcing a person to hide the face

Pedagogy and softness.

The soul of FRANCE is Liberty, Equality and FRATERNITY

Public order is two: - material public order, security and safety; - non material public order, i.e minimum requirements of an acceptance of the community The name of this is «fraternity» Americans replaced «fraternity» by «The pursuit of the happiness»

Public order? The French would not accept this

Face concealment prohibition in the US.

The Constitutional Court of France in October 2010 In view of the purposes which it is sought to achieve and taking into account the penalty introduced for non-compliance with the rule laid down by law, Parliament has enacted provisions which ensure a conciliation which is not disproportionate between safeguarding public order and guaranteeing constitutionally protected rights.

The principles which should save the French law at the ECHR public order and protection of community freedom: the Court does admit such restrictions (cf. ECHR November 10 th, 2005, Leyla Sahin, n 44774/98) if they are proportionate and especially when the law does not mention any belief in particular (ECHR September 24, 2004, n 65501/01). The ECHR does promote the idea of a duty on European Governments to make no judgment on the people s belief and the people s expression (1), but also to take measures to make living together possible (2), i.e to make pluralism possible in a peaceful society protecting not only individual rights but the rights of others. margin of appreciation: regarding the relationship between European Governments and the expression of faith or beliefs, which are related to national traditions, the Court of Strasbourg does give priority to subsidiarity, i.e to the margin of appreciation of every State, especially for religious signs (ECHR Gorzelik..; Murphy v/ Irland, ; Leila Sahin; it means that even if the French law was regarded as restricting freedom of religion (that we do not think), we would have serious ground to win before the ECHR by pleading that the law is justified and proportionate. As you may know in Kaduraman v/ Turkey, May 3d, 1993, n 16278/90 (CHR quoted by ECHR in Leila Sahin, n 111), the Council of Europe admitted that Turkey could legally prohibit Islamic veil in public universities to avoid any pressure from radical Muslims on students

The LAUTSI case n 1 (2009) (Crucifixes in Italian State-School classrooms) The Court considers that the compulsory display of a symbol of a particular faith in the exercise of public authority in relation to specific situations subject to governmental supervision, particularly in classrooms, restricts the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe. «Nobody, and certainly not a European ideological Court will succeed in killing our identity» The Italian Prime Minister about the first opinion «LAUTSI»

The Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals... The Court concludes in the present case that the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools (see paragraphs 26-28 above) speaks in favor of that approach ECHR in LAUTSI case n 2, Grand Chamber, March 18 th, 2011

Claude LEVI-STRAUSS From its very beginning, France is an open society Cultural exchange make human groups alive But they need to resist and to keep their own culture to have something to exchange

Vladimir JANKELEVITCH The philosophy of face

Individual freedom or symbolic violence? Decency or exhibition?

to civilize the world

«The face is the mirror of the soul» Emmanuel LEVINAS, French Philosopher Egypt, 2500 B.C

Robert DELAUNAY Contrast and unity