IN THE EUROPEAN COURT OF HUMAN RIGHTS Application No: 4619/12 BETWEEN: FOUZIA DAKIR -and- KINGDOM OF BELGIUM WRITTEN SUBMISSIONS ON BEHALF OF LIBERTY (Intervener) Introduction 1. This case raises issues of great public importance concerning the right to manifest religious beliefs, the right to private life, the right to freedom of expression and the application of these rights in a non-discriminatory manner. The present case is closely related to that of S.A.S. v France [GC], Application no. 43835/11, Judgment of 1 July 2014, in which the Grand Chamber in a majority decision determined that a French law aimed at banning the wearing of the full Islamic veil - or burqa - in public places did not contravene the rights contained in the Convention. The blanket restrictions on religious dress in S.A.S. and the Applicant s case, raise serious concerns: they are in effect a means of proscribing the manner in which women are able to express themselves and their religion via their choice of clothing. When viewed against the growing rise of Islamophobia and anti-muslim discourse throughout Europe, the Court must apply anxious scrutiny when considering whether such broad restrictions are in fact capable of justification by the State. Indeed, it is submitted that the only occasion in which religious freedom may be restricted is where its exercise can be shown by the State to harm the rights and freedoms of others. 1 2. The wearing of dress inspired by religious belief as an expression of religious belief has been the subject of much discussion and litigation both in the United Kingdom and before the European Court. No ban on the wearing of the full Islamic veil has yet been proposed by the UK Government. However, the leader of the UK Independence Party, which achieved the largest share of the vote in the 2014 European Parliamentary elections in the United Kingdom, has stated that full veils are a symbol of an increasingly divided 1 See, Drawing the Line: Tackling Tensions between Religious Freedom and Equality, INCLO, September 2015, available at https://ccla.org/cclanewsite/wp-content/uploads/2015/09/inclo-report-drawing-the-line-eq-vs- FoR.pdf (last accessed 11 November 2015). 1
Britain, that they oppress women, and are a potential security threat. 2 He has also called for a ban on all face-covering Muslim veils. In response, the then Schools Secretary, Ed Balls said that imposing standards of dress on people in public was not British. 3 By contrast, a number of domestic cases have upheld restrictions on Islamic dress in schools, on the grounds that other schools were available which would have accommodated their wearing. 4 A proscription on the wearing of the Crucifix in the employment context wear the wearing of it does not give risk to a risk of injury or interference with the rights of others has been held to be lawful by the English court but subsequently held to be a violation of Article 9 of the Convention by this Court. 5 The Nature and Functions of the Intervener 3. Liberty (formerly the National Council for Civil Liberties) is a cross-party, non-party membership organisation founded in 1934 which is at the heart of the movement for Fundamental Rights and Freedoms in England and Wales. Liberty promotes the values of individual human dignity, equal treatment and fairness as the foundations of a democratic society and seeks to protect civil liberties and promote human rights for everyone. Liberty intervened in S.A.S. v France in this Court. The Belgian Regulations 4. A blanket ban on the wearing of the full Islamic veil in public was adopted by the Belgian Government on 1 June 2011. The Applicant s challenge, however, concerns a pre-existing local ban, adopted in 2008 under the Co-Ordinated Unified Police Regulations for the Verviers Police District ( the Regulations ). 5. Article 113 of the Regulations bans the wearing of masks and the use of all stratagems to conceal personal identity at all times in all meetings and in all public places and on the public thoroughfare without the previous permission of the Mayor. An amendment (Article 113bis) was passed in 2008 clarifying this provision. It prohibits the wearing of any garment that conceals the face [ ] at all times and in all public places. 6 The application of administrative fines and the use of force are authorised means of enforcing 2 http://www.bbc.com/news/world-europe-13038095. 3 http://news.bbc.co.uk/2/hi/8464124.stm. 4 See, for example R(SB) v Head Teacher and Governors of Denbigh High School [2007] 1 AC 100; R (X) v Head Teacher and Governors of Y School [2008] 2 ALL ER 249. 5 Eweida and Ors v United Kingdom Application nos. 48420/10, 59842/10, 51671/10 and 36516/10, 15 January 2013. 6 Emphasis added. 2
the local Regulations. Breach of the Belgian-wide ban can result in up to seven days imprisonment. 6. Although framed in neutral terms, the Regulations aim is explicitly to prohibit the wearing of the burqa. This is evident from the Verviers Women s Advisory Committee request for a ban on grounds of gender inequality in 2008, and the Police Committee s reasons for the amendment to include Article 113bis, namely that the wearing of the burka in Verviers on the public thoroughfare and in a number of different public places [ ] appears to shock, if not frighten, the population. 7 The amendment was explicitly requested because it was felt that the language relating to masks and stratagems did not cover the wearing of the full Islamic veil. 7. The ban on the wearing of the burqa is extremely wide. It applies to all public places. Furthermore, on one construction of Article 113 bis, it would even cover the wearing of the burqa in private: at all times and in all public places. 8. The ban has been actively enforced since its entry into force. 8 Its impact on Muslim women wishing to wear the burqa in the Verviers area is significant: they must either forgo an important manifestation of their faith, or remain at home. Convention History and the Significance of Freedom of Religion and Non-Discrimination 8. The origins of the European Convention are firmly rooted in the atrocities of the Second World War. The legacy of the Holocaust is found, firstly, in the foundational documents of the United Nations. The Charter of the United Nations describes its purposes as including promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion (Article 1(3)). The codification and elucidation of those rights is found in the Universal Declaration of Human Rights (1948), the preamble to which refers to the disregard and contempt for human rights [which] have resulted in barbarous acts which have outraged the conscience of mankind. The rights to freedom of religion, including the manifestation of religion in teaching, practice, worship and observance, and non-discrimination are specifically recognised and guaranteed in the Declaration (Articles 2 and 18). It was explicitly the horrors perpetrated 7 Applicant s submissions, page 15. 8 Applicant s submissions, page 14. 3
against the Jews, and the commitment to preventing the repeat of any such genocide, that provided the impetus for embedding these rights and freedoms. 9. It is against this backdrop that the Council of Europe set about drafting the Convention (see Preamble). The need for enforceable rights exercisable by individuals against sovereign states, transcending national boundaries, nationality and citizenship was understood to be necessary given the crimes against humanity perpetrated by the Nazis. As with the UN Charter and the UN Declaration, religion was afforded particular protection in recognition of what was then the recent past (Article 9). 10. Despite the intentions of those States founding the United Nations and the Council of Europe, other crimes against humanity have occurred since - including on European soil (specifically the ethnic cleansing and genocide of Bosnian Muslims under the leadership of Slobodan Milošević), with religion being at least a contributory factor in the minds of those committing the atrocities. More recently, there has been a rise in anti-muslim sentiment and Islamophobia in Europe. In the United Kingdom, hate crimes against Muslims increased by 70% in the year 2014. Around 60% of victims were girls or women wearing a headscarf or a hijab. 9 It has been reported that in the week following the 13-14 November terrorist attacks in Paris there was a 300% increase in Islamophobic attacks on British Muslims. The majority of the victims were girls and women in Islamic dress. 10 The threat posed to Muslims, particularly to those choosing to wear garments reflecting their religion, is therefore real and current. As integration and immigration increase, so does the risk of fear and intolerance towards those perceived as different. The State must be careful not to adopt measures which could be seen as legitimizing the view that the expression or practice of Islam is to be feared, and thus restricted. 11. The Intervener, therefore, submits that freedom of religion must be guarded carefully in order to ensure that history does not repeat itself. Articles 8, 9, 10 and 14 9 http://www.theguardian.com/world/2015/sep/07/hate-crimes-against-muslims-soar-london-islamophobia (last accessed 11 November 2015). 10 http://www.independent.co.uk/news/uk/home-news/paris-attacks-british-muslims-face-300-spike-in-racial-attacksin-week-following-terror-a6744376.html 4
12. General rules that regulate clothing to be worn by women in public may involve a violation of a number of rights, including non-discrimination, the right to privacy, the right to freedom of religion, the right to hold opinions without interference, and free expression. Article 9 13. Freedom of thought, conscience and religion as enshrined in Article 9 is one of the foundations of a democratic society : Sahin v Turkey [2007] 44 EHRR 5 at [104]. This statement of general principle was restated by the Court in S.A.S. v France, observing that [t]he pluralism indissociable from a democratic society, which has been dearly won over the centuries depends upon the freedom expressed in Article 9, in its religious dimension. 11 The Court went on to consider its case law on the role of the State as the neutral and impartial organizer of the exerciser of various religions, faiths and beliefs [ ] conducive to public order, religious harmony and tolerance in a democratic society. 12 However, it is not for the State to assess the legitimacy of religious beliefs or the way in which those beliefs are expressed. The State s role is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other. 13 14. There can be no doubt particularly following S.A.S. v France that the Regulations interfere with the Applicant s right to religious freedom under Article 9. The ban affects every aspect of her life: whenever she wishes to travel in public she must choose between her religious expression and obeying the law. 14 Articles 8 and 10 15. The Applicant s ability to choose what she wears in public falls within the scope of the right to private life under Article 8. 15 16. Further, the interference with a woman s right to express her faith and beliefs through the wearing of the burqa violates Article 10 unless there is a justification for it. 16 Article 14 11 At para. 124. 12 S.A.S. v France, para. 127. 13 S.A.S. v France, para. 127. See also, Serif v Greece, App, No, 38178/97, ECHR 199-IX at para 53. 14 See, S.A.S. v France, partly dissenting opinions of Judges Nussberger and Jaderblom, at paras 21-23. 15 S.A.S. v France, para. 107. 16 Stevens v UK [1986] 46 DR 245, EComm ER; Vajnai v Hungary [2008] ECHR 33629/06 (8 July 2008). 5
17. The Court found no violation of Article 14 in S.A.S. v France because it had already determined that the French law banning the burqa was a justified interference with Articles 8 and 9. 17 However, it is clear that a law which is intended to proscribe the dress of Muslim burqa wearing women with the effect of significantly disadvantaging them is discriminatory both in its intent and in its effect. No attempt has been made to introduce a similar ban on the wearing, for example, of the Sikh turban, or on the wearing of a Christian crucifix. The Regulations explicitly single out Muslim women; they are discriminatory, and must therefore be justified if they are not to violate Article 14. 18 Justification 18. Interference with Articles 8 10 may only be justified if the State can show that the interference is both necessary and proportionate in pursuit of a legitimate aim. Articles 8(2), 9(2) and 10(2) are explicit and exhaustive in the aims which might be regarded as legitimate. Amongst the aims listed are public safety and security. However, any interference must not go beyond that which is necessary and proportionate to achieve that aim. Furthermore, given the importance of the right to religious freedom, the aforementioned context in which the Convention was drafted, the increased risks to Muslims as a result of Islamophobia and anti-muslim sentiment, and the consistently recognized obligation upon states to ensure pluralism, tolerance, and broadmindedness in upholding religious freedom as one of the hallmarks of a democratic society, the threshold for justification must be particularly high. 19 Indeed, religion is a suspect classification in Convention case law, so that very weighty reasons are required if any distinctions in treatment based upon it are to be justified. 20 19. Although the Court in S.A.S. v France afforded a wide margin of appreciation to France and on that basis found the burqa ban justified, it also recognized the need to engage in a careful examination of the burqa ban and the necessity and proportionality of its purported justifications. 21 The latter is consistent with the Court s previously established position that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: 17 S.A.S. v France at paras 160-162. 18 DH v Czech Republic [2008] 47 EHRR 3. 19 Sahin v Turkey [2007[ 44 EHRR 5, para. 108; S.A.S. v France, paras 123, 127. 20 Hoffman v Austria [1993] 17 EHRR 293, para. 36; Timishev v Russia [2007] 44 EHRR 37, para. 58. 21 S.A.S. v France, para. 122. 6
a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. 22 Public Safety 20. The primary justification for the Regulations is said to be public safety. However, it would appear that the following justifications have also been put forward in support of the ban: (1) to promote gender equality; (2) to counter Islamophobia; and (3) to promote integration and basic values, including the concept of living together. 23 21. As to public safety, it is accepted that this is a legitimate aim for the purposes of the Convention. However, in order to justify the ban set out in the Regulations, the State must provide evidence of a general threat. No such evidence has been provided by the Belgian State in this case (so far as Liberty are aware). It moreover cannot be said that the imposition of a blanket ban on the wearing of the burqa at any time and in any public place is proportionate to what may well be a legitimate need to identify certain individuals in order to preserve public safety or prevent crime. 24 Gender Equality 22. Gender equality appears to have been the initial justification for the Regulations, as it was at the request of the Verviers Women s Advisory League in 2008 on this basis that the Regulations were first drafted. It also appears to feature in the State s justification under the heading of integration. 25 However, all 17 judges in S.A.S. v France found that the blanket ban on the wearing of the burqa in public was disproportionate to any claimed goal of promoting gender equality. 26 Gender equality may be a legitimate aim but cannot be a sustainable argument where a significant number of Muslim women including the applicants in S.A.S. v France and in the present case - choose to wear the full veil as a manifestation of their religious beliefs. 27 Indeed, a ban of the type imposed here risks increasing gender inequality as its effects are disproportionately restrictive for women, who will be imprisoned at home unless they conform to a state proscribed dress-code. 22 Young, James and Webster v United Kingdom, App. No 7601/76, 13 August 1981, para. 63. 23 Applicant s submissions, page 5. 24 S.A.S. v France, para. 139. 25 Applicant s submissions, page 5. 26 S.A.S. v France, paras 118-119. 27 E. Brems et al, Uncovering French and Belgian Face Covering Bans Journal of Law, Religion and State 2 (2013) 69, 93. See also the dissenting opinion of Judge Tulkens in Sahin v Turkey, para. 12. 7
Conversely, Muslim women who do not freely choose to wear the burqa will be forced to remain out of the public domain because they will not be permitted to appear in public without the burqa - thus further restricting their rights and increasing the risk of violence and oppression in the home without recourse to help from the State. Islamophobia 23. It is not clear how or why the Regulations are considered necessary to avoid Islamophobia. To the extent that they are intended to prevent offence to others, that argument was swiftly rejected by the Court in S.A.S. v France. The Court held that while the clothing in question is perceived as strange by many of those who observe it [ ] it is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy. 28 Furthermore, the burqa ban and the debate surrounding it stigmatises the visible adherence to Islam, thus increasing the sense of fear and hostility towards Muslims. If the State considers it necessary to censor or restrict the manifestation of one particular religion particularly when it is said to be necessary on grounds of public safety or gender equality that can only serve to legitimize Islamophobia amongst the population. As a consequence, Muslims are further isolated from mainstream society and integration becomes more difficult. To the extent that the concern is the threat posed by extremist political movements seeking to impose on society as a whole their religious symbols and conception of a society founded on religious precepts, a ban on all religious expression of this nature is very unlikely to be capable of justification. 29 There is moreover no evidence that the wearing of the burqa causes actual harm to others or that its wearing by Muslim women in Belgium is as a result of the imposition of extremist political movements. Living together and integration 24. The majority in S.A.S. v France afforded a wide margin of appreciation to the French Government in finding that the burqa ban was justified in order to protect the concept of living together, which it found to fall within the protection of the rights and freedoms of others under Article 9(2). It is respectfully submitted that, given the importance of the issues and the significance of the impact on a minority group, to take the same approach in this case would be fundamentally flawed. 28 S.A.S. v France, para. 120. 29 Dissenting opinion of Judge Tulkens, Sahin v Turkey, para. 10. 8
25. Indeed, as the Court itself recognized in S.A.S. v France, the concept of living together was flexible and open to abuse. 30 While the Court considered that the concept fell within the protection of the rights and freedoms of others, it was criticised by the minority as being an abstract principle which did not obviously reveal which rights of others were to be protected. 31 Thus the minority cast doubt as to whether the French ban actually pursued any legitimate aim under Article 8(2) or 9(2) at all. 26. The living together justification is closely linked with Islamophobia. The Court in S.A.S. v France expressed concern over the Islamophobic remarks made during the course of the debate preceding the adoption of the French law. 32 It was therefore incumbent on the Court to apply close scrutiny to this purported justification, particularly given its duty to protect minorities against disproportionate interferences by a majority state. 33 Restrictions on the visibility of a particular religious group is more likely to reduce tolerance and integration and increase Islamophobia and anti-muslim sentiment. 34 27. Care must be taken not to damage pluralism by the restriction of minority religious beliefs by the majority. This was recognized by the minority in S.A.S. v France, which expressed concern that the blanket ban could be interpreted as a sign of selective pluralism and restricted tolerance [ ] it has not sought to ensure tolerance between the vast majority and the small minority, but had prohibited what is seen as a cause of tension. 35 28. It is also of note that unlike France, Belgium does not have the same constitutional commitment to laïcité as the French Government. Of importance to the Court in S.A.S. v France was the purported import of the principle of interaction between individuals as essential to the concept of fraternité. While it is submitted that leaving it to the State to define freely what it considers to be the notion of living together is inconsistent with the weighty justification required for any interference with the right to religious expression, to the extent that such an approach was taken in S.A.S. v France, it would not appear to be justified on the facts of this case. 30 S.A.S. v France, para. 122. 31 S.A.S. v France, dissenting opinion, paras 10-13. 32 S.A.S. v France, para. 149. 33 S.A.S. v France, dissenting opinions, para. 20. 34 See also paragraph 23 above. 35 S.A.S. v France, dissenting opinions, para. 14. 9
29. Finally, if it can be said that any restriction on the wearing of the full veil is necessary, it must be proportionate. The Regulations are extremely wide in their scope and application. No weight has been given to the rights of the women affected, nor do they respect the balance required by the Convention. Even if the purported aims of the ban are legitimate, they could be achieved by less intrusive means, such as the removal of the full veil for certain administrative procedures. Conclusion 30. The blanket ban on the wearing of the full veil in public does not offer any protection from coercion by extremist groups, rather it forces women whether they have chosen to wear the burqa or are pressured to do so - to remain behind closed doors. Simply removing what is a perceived source of tension with no regard for the impact on the women who are affected is neither liberating for women nor does it engender pluralism and tolerance in society. Rather, such bans segregate and stigmatize women who wear the burqa, and legitimize the growing prejudice towards Muslims across Europe. KARON MONAGHAN QC KIRSTEN SJOVOLL ROSIE BRIGHOUSE 25 November 2015 10