The Round-Up: Niqab ban does not violate human rights

19 July 2017 by

The European Court of Human Rights has upheld the Belgian ban on Islamic burqas and other full-face veils by ruling that it does not violate human rights.

In doing so the Court has held by its position in S.A.S v. France (2014), where it ruled that a similar ban in France was lawful. In these latest cases the Court was asked to rule on the lawfulness of such bans in Belgium, where the applicants argued it was in violation of Articles 8 (right to respect for private and family life) and 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights.

Belcacemi and Oussar v. Belgium

This case concerned the compatibility of a Belgian law introduced on 1st June 2011 which banned the wearing in public places of clothing which partially or totally covers the face. The applicants, Samia Belcacemi and Yamina Oussar both claimed that they had chosen to wear the niqab (a veil which totally covers the face except for the eyes) because of their religious beliefs, and that the restriction on doing so had violated their human rights. Ms Oussar in particular argued that since she has decided to stay at home and wear the veil there has been a restriction on her private and social life.

The Court held that there had been no violation of the applicants’ human rights since the restriction could be considered “necessary in a democratic society”. In particular, it noted that the aims of the Belgian law were public safety, gender equality, and a certain conception of “living together” in society, and held that the ban was in principle justifiable to the extent that it could be regarded as an element of the “protection of the rights and freedoms of others” and would guarantee the conditions of “living together”. It also observed that the Belgian State was in a better position than the Court to assess the needs of citizens and the context in question, and that the State enjoyed a wide margin of appreciation in deciding what constituted “necessary”. It further found that the measure was proportionate to the aim pursued, particularly given that the sanction could range from a fine to a prison sentence, and that any prison sentence would not be applied automatically but only given to repeat offenders.

Dakir v. Belgium

This case concerned a by-law which had been adopted in June 2008 (prior to the national law) by three Belgian municipalities (Pepinster, Dison and Verviers) which banned the wearing in public places of clothing which partially or totally covers the face. The applicant, Fouzia Dakir, lives in Dison, and (like Ms Belcacemi and Ms Oussar) claimed that she had chosen to wear the niqab because of her religious beliefs.

As in Belcacemi and Oussar, the Court held that there had been no violation of the applicant’s Articles 8 and 9 rights. In this case also, the ban was justified on the grounds that it sought to guarantee the conditions of “living together”, and again the State was both better placed to evaluate what was necessary and enjoyed a wide margin of appreciation in doing so. In particular, the Court emphasised that this was a choice of society that had been made by the Belgian State.

The Court did, however, hold that there had been a violation of the applicant’s Article 6 (right to a fair trial). The Conseil d’État had declared Ms Dakir’s application inadmissible on the grounds that it had been based on Article 113bis of the by-law without reference to Article 113. The Court considered that such an assessment did not strike an appropriate balance between adhering to formal procedure and ensuring access to courts, particularly given the merits of the case in this instance.

What does this mean for human rights?

The niqab has proved increasingly controversial as an expression of faith by Muslim women, at least in Europe. A ban on veils covering the face is now in place not only in Belgium and France, but also in Austria, Bulgaria and the Netherlands.

Yet while the ban purports to promote integration and human relationships, it still has been criticised for infringing Muslim women’s rights. Human Rights Watch for example has swiftly criticised these rulings as it did the earlier decision in 2014. The nebulous notion as “living together” might come under attack as a restriction of Muslim women’s rights.

IN THE COURTS: 

This week the High Court will consider another challenge to the 1961 Suicide Act, under which assisted dying is illegal. The case has been brought by 67-year-old Noel Conway, a sufferer of motor neurone disease, and he is represented by Richard Gordon QC. The argument before the court is that the act breaches human rights, in particular Conway’s Article 8 right to respect for private life and personal autonomy, and should thus be declared illegal. At present those who wish to end their lives with medical assistance must travel to Dignitas in Switzerland to seek help. Conway’s barrister has highlighted the dilemma for many in such a situation: “the choices facing the claimant are therefore stark and unpalatable: seek to bring about his own death while he is physically able to do so, but before he is ready to do so, or await death with no control over when and how it comes.” The Supreme Court dismissed a similar challenge in the Nicklinson case in 2014, when it refused to make a declaration of incompatibility, wishing to give parliament a chance to debate the matter first; the House of Commons however chose to reject the private member’s bill put forward in 2015. As such, it is more likely now that a court would choose to make such a declaration.

A Turkish court has ruled that six human rights activists, including Idil Eser, Amnesty International’s Turkey director, should remain in custody, and a further four have been released on judicial control. The individuals in question were arrested during a digital security and information management workshop on 5th July and have been accused of “committing a crime in the name of a terror organisation without being a member”. The arrests come amid ever increasing fears of human rights abuses in Turkey since the failed coup attempt last July, particularly regarding freedom of expression. Amnesty International’s Turkey researcher Andrew Gardner has labelled the detention a “shocking travesty of justice”, and has warned that “after this decision none of us who defend human rights in Turkey, whether it is Amnesty International or other organisations, are safe in this country”.

Russia’s Supreme Court has banned Jehovah’s Witnesses, upholding a ruling from April this year that declared the religious group to be extremist. The Justice Ministry argued that the group (whose members are known for visiting people at home and seeking to convert them) had distributed literature inciting hatred against other religious groups; one pamphlet, for example, had described the doctrine of the Russian Orthodox Church as superstition and sorcery. According to Yaroslav Sivulsky, the group’s Russia spokesman, the ruling signals that “religious freedom in Russia is over”. The group was one of many Christian denominations that was persecuted in the Stalin era, and human rights group Sova has argued that an “official repressive campaign” has been waged in the past years, particularly since 2004. The group are expected to appeal to the European Court of Human Rights, but even so Russia may well choose to ignore any ruling.

IN THE NEWS:

Human Rights Watch has reported that Rwandan state security forces have summarily killed at least 37 petty offenders between July 2016 and March 2017. These offenders have been executed without an appropriate legal process to establish their guilt, and for as little as the theft of bananas, a cow or a motorcycle. Other offences have included smuggling marijuana, illegally crossing the border with the Democratic Republic of Congo, and using illegal fishing nets. HRW has also reported that at least four other petty offenders have disappeared; their families believe that the security forces killed them too, although their bodies have not yet been found. HRW has made a number of recommendations in its report, and in particular has reminded the Rwandan state of the importance of fair and credible trials, lawful detention, and execution only where it is unavoidable to protect life.

Although earlier this year promises were made to review the restrictive media law in Somalia, the cabinet’s newly reformed media bill has been met with dismay by media watchdogs and human rights groups. According to Human Rights Watch, the cabinet’s amended law that was introduced on 13th July makes only limited reforms. Journalists in Somalia are frequently subjected to arbitrary arrests and two were even murdered in 2016, such that journalists are often forced to self-censor to ensure their own safety. While the new law has made some reforms, such as by reducing fines, it still includes vague and broad prohibitions, such as on “propaganda against the dignity of a citizen, individuals or government institutions”, which could easily be manipulated by public authorities.

by Poppy Rimington-Pounder

3 comments


  1. Though whilst communicating the expectation is to see the face. However, whilst communicating with technology there is no human contact yet one is expected to communicate.
    On what grounds is the covering of ones head and body illegal? If I were a nun that is precisely how I would clothe myself. Modesty should be celebrated. It does violate Human Rights as one is banned from the choice of clothing.
    Is there any ban on micro mini skirts or dresses where womens nipples are shown or women decide to go nude this is what media currently promotes.
    What does society prefer modesty or immodesty?
    Peace not pieces?

    1. In order to understand “on what grounds is the covering of ones [sic] head and body illegal” one has to appreciate how the concept of “margin of appreciation”, devised by the ECtHR operates. The Court made a clear reference to this concept by stating:”the Belgian State was in a better position than the Court to assess the needs of citizens and the context in question, and that the State enjoyed a wide margin of appreciation in deciding what constituted “necessary”. So, covering one’s head or body may be illegal on the basis that states have the right to give prominence to countervailing considerations that may trump over the individual’s right. It therefore depends on a state’s eventual (political) choice as to which values should be given greater weight. And by the way I totally agree that showing nipples or going naked should be made illegal 100%.

  2. Hijab (a partial veil) is also banned in Switzerland and the ECtHR has also ruled it legal (Dahlab v Switzerland, 2011) but on a very different ground, which was gender equality. I think this concept of “living together” sounds much better that the approach taken in Dahlab because instead of adopting a patronising stance towards those who wear it focuses, righty in my view on the rest of us and our legitimate expectation to live with people whose faces we need to be able to see in normal communication. A good decision.

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