Belcacemi and Oussar v. Belgium

Information Note on the Court’s case-law 209

July 2017

Belcacemi and Oussar v. Belgium - 37798/13

Judgment 11.7.2017 [Section II]

Article 8

Article 8-1

Respect for private life

Ban on wearing face covering in public: no violation

Article 9

Article 9-1

Manifest religion or belief

Ban on wearing face covering in public: no violation

Article 14

Discrimination

Alleged indirect discrimination underlying ban on wearing face covering in public: no violation

[This summary also covers the judgment in the case of Dakir v. Belgium, 4619/12, 11 July 2007]

Facts – The applicants are Muslim women who complained about the fact that they were prevented from wearing the full-face veil. The Law of 1 June 2011 provides for punishment, by a fine and/or imprisonment (up to a maximum of 200 EUR or seven days respectively), for the fact of concealing one’s face in places to which the public has access. Similar bans had already been issued by certain municipalities in the past.

The applicants had attempted to obtain annulment of one of the contested municipal by-laws before the Conseil d’État (case of Dakir), or of the 2011 Act before the Constitutional Court (case of Belcacemi and Oussar).

Law – Articles 8 and 9

(a) Legal basis and quality of law – With regard to the municipal by-laws at issue in the Dakir case, the applicant did not challenge the validity of their legal basis, but concentrated her criticism on the law that was subsequently enacted.

With regard to the Law of 1 June 2011, the Court did not find any arbitrariness in the Belgian Constitutional Court’s reasoning. Using the same criteria as its own, the Constitutional Court had considered that the Law satisfied the requirements of foreseeability and precision, provided that the expression “places to which the public has access” was interpreted as not including places of worship. In addition, the contested prohibition was worded in terms that were very close to those of the French law examined in the case of S.A.S. v. France.

(b) Legitimate aim – The aims pursued by the contested municipal by-laws or the 2011 Law included: public safety, gender equality and a certain conception of ‘living together’ in society. As in the S.A.S. v. France judgment, the aim of ensuring the observance of the minimum requirements of life in society could be considered here as part of the “protection of the rights and freedoms of others”. Moreover, there was nothing to indicate that, in the Belgian context, greater weight had been attached to the aim of equality than to the other aims.

(c) Necessity of the ban in a democratic society – No specific arguments were developed against the municipal by-laws theoretically at issue in the Dakir case.

According to the preparatory work for the above Law and its analysis by the Constitutional Court, the elements of the problem giving rise to discussion in Belgium were very similar to those which had led to the adoption of the French ban that was examined in the S.A.S. v. France judgment ([GC], 43835/11, 1 July 2014, Information Note 176).

The Court therefore referred to the different considerations in that judgment, and particularly to the following:

– the contested ban constituted a choice of society, a balance democratically struck by the legislature, which called for a certain reserve on the part of the Court;

– while it was true that the scope of the contested ban was broad, it did not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which did not have the effect of concealing the face;

– there was still no consensus among the member States of the Council of Europe on this matter, which justified granting them a very wide margin of appreciation.

Certain alleged specific features of the Belgian situation were dealt with as follows.

(i) The manner in which the rule was applied in the event of a breach (case of Belcacemi and Oussar) – The Belgian legislation admittedly differed from its French counterpart in that it provided, in addition to a fine, for the possibility of a prison sentence.

However, a prison sentence could only be imposed in the event of a repeat offence. In addition, the law had to be applied by the criminal courts in compliance with the principle of proportionality and with the Convention, and the theoretical severity of the penalty of imprisonment was offset by the fact that it was not imposed automatically.

Furthermore, under Belgian law, the offence of concealing one’s face in public was a “mixed” offence, falling under the scope of both criminal proceedings and administrative action. In the latter context, however, alternative measures were possible and frequently taken in practice at municipal level.

For the remainder, the assessment in concreto of the proportionality of any penalty that might be imposed in respect of the contested ban was a task that fell to the domestic courts (the Court’s role being confined to ascertaining whether the respondent State had exceeded its margin of appreciation).

(ii) The allegation that the democratic process which had led to the prohibition of the full-face veil in Belgium had not taken full account of what was at stake (Dakir case) – Besides the fact that this criticism did not directly concern the by-laws in question but referred to the Law of 1 June 2011, the Court noted that the decision-making process with regard to the contested ban had taken several years and had been accompanied by a wide-ranging debate within the House of Representatives as well as by a detailed and thorough examination of all of the interests at stake by the Constitutional Court.

***

In conclusion, although it was controversial and undeniably posed risks in terms of promoting tolerance within society, the contested ban could, having regard to the margin of appreciation left to the respondent State, be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”. This conclusion held true with respect both to Article 8 of the Convention and to Article 9.

Conclusion: no violation (unanimously).

Article 14 combined with Article 8 or Article 9: The complaint of indirect discrimination was rejected, the measure having, for the same reasons as those set out above, an objective and reasonable justification.

Conclusion: no violation (unanimously).

In the Dakir case the Court unanimously concluded that there had been a violation of Article 6 § 1 as the applicant had been denied access to a court as a result of excessive formalism.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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