SECOND SECTION
CASE OF DAKIR v. BELGIUM
(Application no. 4619/12)
JUDGMENT
(extracts)
STRASBOURG
11 July 2017
FINAL
11/12/2017
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Dakir v. Belgium,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Robert Spano, President,
Julia Laffranque,
Işıl Karakaş,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 13 June 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 4619/12) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian national, Ms Fouzia Dakir (“the applicant”), on 22 December 2011.
2. The applicant was represented by Ms I. Wouters a lawyer practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department.
3. The applicant complained that the ban on wearing in public places clothing designed to conceal the face deprived her of the possibility of wearing the full-face veil. She alleged a violation of Articles 8, 9 and 10 of the Convention, taken separately and in conjunction with Article 14 of the Convention. She alleged, further, that she had not had an effective remedy before the Conseil d’Etat (Articles 6 § 1 and 13 of the Convention).
4. On 9 July 2015 the Government were given notice of the above-mentioned complaints and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. The non-governmental organisation Liberty and the Human Rights Centre of Ghent University were given leave to submit written comments (Article 36 § 2 of the Convention and Rule 44 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1977 and lives in Dison.
7. The applicant stated that she was a Muslim and had decided, on her own initiative, to wear the niqab – a veil covering the face except for the eyes – in accordance with her religious beliefs. She said that she had taken the decision to wear the full-face veil when she was sixteen years old. She explained that her choice had been accepted by her family and friends and by her husband. She also stated that she had always agreed to remove her veil for identification purposes as required by the authorities, such as when issuing her identity card.
8. On 18 February 2008 the Vesdre district administrative authorities proposed an amendment to the district regulations regarding the wearing of the burqa in public thoroughfares and in public places ... .
9. The president of the police district invited the Verviers public prosecutor to express an opinion on that proposal. On 18 March 2008 the public prosecutor replied that he did not have any observations to make.
10. The municipal councils of the three municipalities belonging to the police district – the municipal council of Pepinster on 23 June 2008, Dison on 26 June 2008 and Verviers on 30 June 2008 – enacted the following provisions of the consolidated by-laws of the Vesdre police district, which differed, moreover, from the original proposal.
“Article 113. Save where authorised by the mayor (Bourgmestre) of the municipality, wearing a mask or using any strategem whatsoever for the purposes of concealing personal identity shall be forbidden at all times, at any public meeting and in all public places and in public thoroughfares.
...
Article 113bis. The wearing of clothing concealing the face shall be forbidden at all times and in all public places.
However, a helmet, balaclava or other headgear may be worn where authorised by the legislation on the safety of workers or other legislation.
...
11. On 29 August 2008 the applicant lodged an application with the Conseil d’État for annulment of Article 113bis. She argued that the provision in question expressly targeted the Islamic veil, which she wore, and that the resulting ban constituted an interference with her rights guaranteed by Articles 8, 9 and 10 of the Convention and discrimination in breach of Article 14 of the Convention. She contended that the interference did not pursue a legitimate aim as the principle of secularism was not a constitutional principle and there could therefore be no blanket ban on wearing the veil. In any event, even supposing that the aim could be regarded as legitimate, the applicant maintained that the means were disproportionate in the absence of public disorder or threat of public disorder and thus of a pressing social need. In their memorial in reply of 18 April 2011, the three municipalities submitted that the impugned provision sought to guarantee public safety and not to regulate or restrict the exercise of any form of worship.
12. The auditeur at the Conseil d’État delivered a detailed 26-page report in which he concluded that in his opinion the applicant’s above-mentioned submission was well founded because public safety could not serve as a basis for a ban on wearing the full-face veil in all places generally open to the public, as no specific public disorder was associated with it as such.
13. In judgment no. 213.849 of 15 June 2011, the Conseil d’État, refusing to follow the opinion of the auditeur, dismissed the application for annulment of the provision ... .
14. That judgment was served on the applicant on 23 June 2011.
II. RELEVANT DOMESTIC LAW
A. Municipal by-laws
15. In Belgium the wearing of the full-face veil was first banned by municipal by-laws passed by a number of municipalities among which were the provisions being challenged in the instant case (see paragraph 10 above).
B. The Law of 1 June 2011
16. A Law prohibiting the wearing of any clothing entirely or substantially concealing the face was enacted on 1 June 2011 and came into force on 23 July 2011.
17. The relevant provisions of the Law of 1 June 2011 are worded as follows:
“Art. 2. Article 563bis, worded as follows, shall be inserted into the Criminal Code:
Art. 563bis. Unless otherwise provided by law, persons who appear in a place that is accessible to the public with their faces completely or partially covered or hidden, such as not to be identifiable, shall be liable to a fine of between fifteen and twenty-five euros [read: between 120 and 200 euros] and imprisonment of between one and seven days, or to one of those penalties alone.
However, paragraph 1 hereof shall not concern persons who are present in a place that is accessible to the public with their faces completely or partially covered or hidden, such as not to be unidentifiable, where this is provided for by employment regulations or by an administrative ordinance in connection with festive events.”
18. In judgment no. 145/2012 of 6 December 2012 the Constitutional Court dismissed applications for judicial review of the Law of 1 June 2011, whilst setting out an interpretative reservation in respect of the Law concerning places of worship.
19. With regard to the background to the Law and its aims, the Constitutional Court made the following observations:
“B.4.2. The authors of the bill [which led to the enactment of the impugned Law] sought to endorse a societal model where the individual took precedence over his or her philosophical, cultural or religious ties. Accordingly, they recommended a ban on wearing clothing designed to fully or substantially conceal one’s face in public places, stressing the fact that the ban was not based only on public-order considerations but more fundamentally on social considerations, which were crucial, in the view of the authors of the bill, to the notion of ‘living together’ in a society which sought to emancipate its members and protect the rights of each and every one of them (Doc. parl., Chamber, 2009-2010, DOC 52-2289/001, p. 5, and Doc. parl., Chamber, S.E. 2010, DOC 53-0219/001, p. 5).”
20. Regarding the public-safety and legal aim, the Constitutional Court found as follows:
“In so far as anyone present in public thoroughfares or in a public place must be identifiable, wearing clothing which completely conceals the face poses obvious problems in terms of public safety.
In order to ban conduct of that type, many municipalities have enacted by-laws with a view to banning the wearing of such clothing, while permitting exemptions from the rules at specific events. However, the court cannot but note that, in one and the same city, certain municipalities do not prescribe the same bans. Those differences in regime result in a form of untenable legal uncertainty for citizens and for the authorities responsible for punishing that type of conduct.
The authors of the bill therefore recommend that the question be determined at federal level so that the same rule applies throughout the country (Doc. parl., Chamber, 2009-2010, DOC52-2289/001, pp.5-6, and Doc. parl., Chamber, S.E.2010, DOC 53-0219/001, pp. 5-6).”
21. As to whether the ban on wearing the veil met a pressing social need and was proportionate to the legitimate aims pursued by the legislature, the Constitutional Court found as follows:
“B.17. It can be seen from the explanatory memorandum to the bill which became the Law at issue ... that the legislature sought to defend a societal model where the individual took precedence over his philosophical, cultural or religious ties, with a view to fostering integration for all and to ensuring that citizens shared a common heritage of fundamental values such as the right to life, the right to freedom of conscience, democracy, gender equality, or the principle of separation between Church and State.
... the legislative history shows that three aims were pursued: public safety, gender equality and a certain conception of ‘living together’ in society.
...
B.21. The legislature further justified its intervention by a certain conception of ‘living together’ in a society based on fundamental values, which, in its view, derive therefrom.
The individuality of every subject of law (sujet de droit) in a democratic society is inconceivable without his or her face, a fundamental element thereof, being visible. Taking into account the essential values that the legislature sought to defend, it was entitled to take the view that the creation of human relationships, being necessary for living together in society, was rendered impossible by the presence in the public sphere, which quintessentially concerned the community, of persons who concealed this fundamental element of their individuality. Whilst pluralism and democracy entail the freedom to display one’s beliefs, in particular by the wearing of religious symbols, the State must pay attention to the conditions in which such symbols are worn and to the potential consequences of wearing such symbols. To the extent that the concealment of the face has the consequence of depriving the subject of law, a member of society, of any possibility of individualisation by facial appearance, whereas such individualisation constitutes a fundamental condition related to its very essence, the ban on the wearing of such clothing in a public place, even though it may be the expression of a religious belief, meets a pressing social need in a democratic society.
B.22. As to the dignity of women, here too the legislature was entitled to take the view that the fundamental values of a democratic society precluded the imposing of any obligation on women to conceal their face, under pressure from members of their family or their community, and therefore their deprivation, against their will, of their freedom of self-determination.
B.23. However, ... the wearing of the full-face veil may correspond to the expression of a religious choice. That choice may be guided by various reasons with many symbolic meanings.
Even where the wearing of the full-face veil is the result of a deliberate choice on the part of the woman, the principle of gender equality, which the legislature has rightly regarded as a fundamental value of democratic society, justifies the opposition by the State, in the public sphere, to the manifestation of a religious conviction by conduct that cannot be reconciled with this principle of gender equality. As the court has noted in point B.21, the wearing of a full-face veil deprives women – to whom this requirement is solely applicable – of a fundamental element of their individuality which is indispensable for living in society and for the establishment of social contacts.
B.24. The court must further examine whether recourse to a criminal sanction to guarantee compliance with the prohibition imposed by the Law has no disproportionate effects in relation to the aims pursued.
...
B.28 In so far as the individualisation of persons, of which the face is a fundamental element, constitutes an essential condition for the functioning of a democratic society, of which each member is a subject of law, the legislature was entitled to consider that the concealment of the face could endanger the functioning of society as thus conceived and, accordingly, should be punished by criminal sanctions.
...”
...
C. Other relevant provisions and situation in other countries
...
23. The relevant provisions appearing in other international instruments and the situation in other European countries are set out in the judgment S.A.S. v. France [GC] (no. 43835/11, §§ 35-52, ECHR 2014 (extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 8, 9 AND 10 OF THE CONVENTION, TAKEN SEPARATELY AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
24. The applicant complained of a violation of her right to respect for her private life, her right to freedom to manifest her religion or beliefs and her right to freedom of expression. She relied on Articles 8, 9 and 10 of the Convention, which read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 9
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
...
25. She also complained of a violation of Article 14 of the Convention taken in conjunction with the above-cited provisions. Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
...
B. Merits
1. The parties’ submissions
a) The applicant
27. The applicant challenged the submission that the ban in question satisfied the condition laid down in paragraph 2 of Articles 8 and 9 of the Convention of necessity in a democratic society in the interests of public safety, for the prevention of disorder, the protection of health or morals or the protection of the rights and freedoms of others. With regard to the aim of “living together” in a democratic society, it was the opposite reasoning – that of openness and tolerance – which should take precedence in a pluralist democratic society as was evidenced by the tolerance that there had always been of dress codes rejecting the living together principle. At best, it could be regarded as a praiseworthy political objective, but one that could not be achieved by some stigmatising by-laws that were contrary to the Convention. In her submission, the factors justifying the ban on safety grounds had been advanced exclusively with regard to the full-face veil, were non-existent and the real aim being pursued by the by-laws was the prohibition of the full-face veil in public places. She argued, lastly, that the issue of dignity and gender equality was irrelevant to justification on grounds of “protection of the rights and freedoms of others” since the exercise of the freedom and wishes of women themselves was hindered.
28. With regard, lastly, to the proportionality of the ban in terms of the aim pursued, the applicant complained that the Constitutional Court had, wrongly, endorsed the argument that the legislature was justified in promoting a societal model which disregarded the philosophical, cultural or religious beliefs of the individuals of which that society was composed, in breach of the principles of equality and freedom. Attributing to the Law of 1 June 2011 an objective of integration and “living together” created, in her view, a total reversal of values, where homogeneity prevailed over the right to difference, thus peremptorily giving preference to a conception of “living together” and democracy to the detriment of the individual liberties which were the basis thereof. The fact that certain Muslim States had voiced their objection to the wearing of the niqab was merely a reflection of the need to give substance to the reference to Islam in their Constitution.
b) The Government
29. The Government based their defence on the Law of 1 June 2011 and the reasons for enacting it. They submitted that the legal ban on the full-face veil had been preceded by a more general debate on, inter alia, how the full-face veil had first appeared in Belgium. In that context it had transpired that the wearing of the full-face veil was not a religious precept laid down in the Koran and that it had, moreover, been banned in a number of Muslim countries on grounds that it was contrary to the spirit of Islam. That being said, the Constitutional Court, in a judgment delivered on 6 December 2012, on the Law of 1 June 2011 (see paragraph 19 above) had transcended the theological and intellectual debate surrounding the issue and highlighted three fundamental reasons justifying the Law, namely, that the wearing of “clothing fully or substantially concealing the face” posed a safety issue, was an obstacle to women’s rights to equality and dignity and, more fundamentally, undermined the very essence of the principle of “living together”.
30. The Government took the view that no one was entitled to claim, on the basis of individual or religious freedom, the power to decide when and in what circumstances they would agree to uncover their face in a public place. The assessment of public-safety requirements necessarily had to be delegated to the public authorities. Reference therefore had to be made to the conditions laid down in the by-laws, as in the present case, or in the subsequent Law, in order to determine the circumstances in which a face could or could not be concealed.
31. The Government did not dispute that the issue of women’s rights to equality and dignity had been raised by both parties and that the wearing of the full-face veil was not necessarily the expression of subservience to men but could be the exercise of the right to choose one’s clothing so as to inspire dignity. However, whilst the concept of dignity of clothing could be subjective, the more multicultural a society and the greater the co-existence of different forms of religious beliefs and expressions of cultural traditions, the more individuals had to refrain from ostensibly displaying those beliefs and traditions in public. No one could dispute the fact that dress codes were the product of societal consensus and the result of a compromise between individual freedoms and codes of interaction within society, and that those who wore clothing concealing their face were signaling to the majority that they did not wish to take an active part in society, whereas one of the values forming the basis on which a democratic society functioned was the possibility of an active exchange between individuals.
32. The Government then pointed out that the legislature had sought to defend a societal model in which the individual outweighed his or her philosophical, cultural or religious attachments so as to encourage full integration and enable citizens to share a common heritage of fundamental values such as democracy, gender equality and the separation of Church and State. As indicated by the Constitutional Court, where the consequence of concealing the face was to prevent a person’s facial individualisation, even though such individualisation was a fundamental condition associated with his or her very essence, the prohibition on wearing clothing concealing the face in places accessible to the public, even if this were the expression of a religious belief, met a compelling social need in a democratic society.
2. Observations of the third-party interveners
a) The non-governmental organisation Liberty
33. The third-party intervener observed that the ban sought explicitly to prohibit the wearing of the burqa and that this led to stigmatisation and potential discrimination against Muslim women. Whilst pluralism, tolerance and broadmindedness ought to be features of a democratic society, the Belgian legislature had chosen to increase the risks already affecting Muslims as a result of an Islamophobic climate.
34. Whatever the aims subsequently proclaimed by the Belgian legislature, it was clear that the municipal by-laws in question had introduced the ban on wearing the veil in order to promote gender equality. The by-laws had first been drafted at the request of the Verviers Women’s Advisory League in 2008. It was paradoxical that the idea of gender equality ran counter to the profoundly personal choice of women who decided to wear the veil, with the attendant risk that imposing legal sanctions exacerbated the inequality that was supposed to be addressed. Women who were forced to wear the veil were thus condemned to remain at home.
35. With regard to the legitimate aim of preserving the concept of “living together”, the third-party intervener asked the Court to reconsider its position in the light of the rise of Islamophobia. In its submission, the ban on covering one’s face in public and the accompanying political debate stigmatised the visible adherence to Islam and thus reinforced negative stereotypes with regard to Muslims. Like the minority of judges in the case of S.A.S. v. France [GC], (no. 43835/11, §§ 35-52, ECHR 2014 (extracts)), the third-party intervener considered that far from seeking to ensure tolerance between the vast majority and the small minority, the Belgian legislature had merely prohibited what was seen as a cause of tension. It also considered that the blanket ban could be interpreted as a sign of selective pluralism and limited tolerance.
36. Furthermore, unlike in France, where the principle of interaction between individuals had been found by the Court to be essential to the concept of fraternity, Belgium did not have the same constitutional commitment to secularism.
37. Lastly, the third-party intervener submitted that, in any event, the ban under the by-laws in question was formulated in very broad terms in that it was applicable “at all times and in all public places” and was disproportionate.
b) The Human Rights Centre of Ghent University
38. The intervening party first commented on the differences between the situation in Belgium, as reflected in the Law of 1 June 2011, and in France.
39. Firstly, the Belgian legislature had not prescribed penalties against persons who forced others to wear the full-face veil and penalised only the person wearing the veil, that is, the victim. That difference was paradoxical given the objective accepted in Belgium and recognised in the above-mentioned judgment of the Constitutional Court (paragraph B.22, see paragraph 21 above) of banning the veil in order to protect women from cultural oppression by men and safeguard their dignity.
40. Secondly, in Belgium, the wearing of the veil had first been banned by municipal by-laws. Certain provisions of these, which had been drafted at the end of the nineteenth century, had targeted any manner of concealing the face and had subsequently been interpreted as also applicable to the veil. Other provisions dated back to the early years of the present century and had been drafted specifically to proscribe the wearing of the veil. Application of the by-laws had, moreover, given rise to conflicting case-law. Today the general ban under the Law coexisted with the municipal by-laws, the former serving as political and legal “cover” for the latter.
41. Thirdly, the process preceding the enactment of the Belgian Law banning the wearing of the veil had admittedly been longer but had been far less intricate than in France. The parliamentary debates had been speedy, the request to organise a hearing of experts and for an opinion from the Legislation Section of the Conseil d’Etat had been rejected, the bill had been discussed only in the House of Representatives, and not referred to in the Senate.
42. That lack of “democratic” quality of the legislative process in Belgium should induce the Court to question the extent of the restraint exercised by it in reviewing Convention compliance, expressed in the judgment S.A.S. v. France cited above (§§ 154-55), when assessing the situation in Belgium having regard to the requirements of the Convention and, accordingly, the margin of appreciation that has to be recognised in the present case.
43. The intervening party then provided the results of a survey carried out in 2010-2011 among 27 women wearing the full-face veil, in order to put the effect of the “living together” aim pursued by the ban on wearing the veil into perspective. Many of them said that, far from being a socially inhibiting factor, wearing the veil allowed them, on the contrary, to take part in numerous activities as mothers and wives which they would have felt uncomfortable engaging in otherwise. On the other hand, a number of others referred to the obstacle to communication created by wearing the veil in the reaction of others, which was either one of fear or a failure to address them directly. The survey showed that the Belgian legislature had made the incorrect assumption that women wearing the full-face veil were unable or unwilling to interact with other members of society.
44. The intervening party also submitted that the ban in question should be viewed in a wider societal context in which there was a substantial degree of hostility towards Muslims. In that sort of context hostile stereotypes could hamper the debate and it became difficult to distinguish between measures taken in good faith in the general interest and harassment of unpopular minorities designed to pander to the intolerant sentiments of a majority.
45. Were the Court to continue relying on the legitimate “living together” aim, it should be shown, in the intervening party’s submission, that the general-interest objective pursued was actually at stake. The Court would have to ascertain whether the ban was in actual fact capable of remedying the problem identified and whether the adoption of alternative less restrictive measures had been sufficiently taken into consideration.
3. The Court’s assessment
46. The Court finds that although the instant case was introduced after the entry into force of the Law of 1 June 2011 banning the wearing of any clothing fully or substantially covering the face, it concerns a provision of a by-law enacted prior to that Law: Article 113bis of the consolidated municipal by-laws of the Vesdre police district. Nevertheless, it can be seen from the application and from the observations submitted to the Court that the arguments refer almost exclusively to the Law of 1 June 2011 and to the analysis thereof by the Constitutional Court (see paragraph 16 above). As the application concerns an issue posed in terms which very closely resemble those surrounding the enactment of the French Law of 11 October 2010 prohibiting the concealment of one’s face in public places, the Court will largely refer to the judgment S.A.S. v. France, cited above, which examined the French ban in the light of the relevant provisions of the Convention.
a) Alleged violation of Articles 8 and 9 of the Convention
47. The Court observed that the ban on wearing in public places clothing designed to conceal the face raised questions in terms of the right to respect for private life of women who wished to wear the full-face veil for reasons related to their beliefs, and in terms of their freedom to manifest those beliefs. That being said, in so far as that ban is criticised by individuals who, like the applicant, complain that they are consequently prevented from wearing in public places clothing that the practice of their religion requires them to wear, it mainly raises an issue with regard to the freedom guaranteed by Article 9 of the Convention to manifest one’s religion or beliefs (see S.A.S. v. France, cited above, §§ 106-09).
i. Regarding the quality of law
48. The Court notes that the applicant did not dispute that the consolidated municipal by-laws of the Vesdre police district had the quality of “law”. The ban can therefore be deemed to have a “legal” basis meeting the criteria established in the Court’s case-law concerning paragraph 2 of Articles 8 and 9 of the Convention.
ii. Regarding the legitimate aim pursued
49. The Court notes in the light of its examination of the observations submitted to it that the parties assumed that the ban under the municipal by-laws in question pursued the same aims as those of the Law enacted subsequently, namely public safety, gender equality and a certain conception of “living together” in society.
50. The intervening organisation Liberty concluded, however, from the fact that the by-laws had been drafted in 2008 following a request by the Verviers Women’s Advisory League that the aim of ensuring gender equality had been the overriding factor (see paragraph34 above). The Court considers that it has no evidence on which to conclude that this aim carried greater weight than the other above-mentioned aims.
51. The Court observes that the above-mentioned aims are similar to those retained by the French legislature and examined in the judgment S.A.S. v. France. In that judgment it found that the concern to ensure the observance of the minimum requirements of life in society could be regarded as an element of the “protection of the rights and freedoms of others” and that the impugned ban could be regarded as justified in its principle solely in so far as it sought to guarantee the conditions of “living together” (§§ 140-42). It considers that the same approach applies in the present case.
iii. Necessity of the ban in a democratic society
52. The Court observes, on the basis of the legislative history of the Law of 1 June 2011 and the analysis thereof by the Constitutional Court (see paragraphs 19-20 above), that the terms of the issue as debated in Belgium very closely resemble those surrounding the enactment of the above-mentioned French ban examined by the Court in the judgment S.A.S. v. France.
53. The applicant asked the Court to change the approach taken in the S.A.S. v. France judgment when assessing the proportionality of the ban on the full-face veil. The intervening organisations submitted that the assessment of that issue had to take account of the special features of Belgian society and of the legislative process preceding the ban in Belgium.
54. As the Court clearly stated in S.A.S. v. France, it must stress the fundamentally subsidiary role of the Convention system and reiterate that the national authorities have direct democratic legitimation in so far as the protection of human rights is concerned. Moreover, by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are in principle better placed than an international court to evaluate local needs and conditions (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 175, 15 November 2016). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker is to be given special weight. With regard to Article 9 of the Convention, the State should thus, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one’s religion or beliefs is “necessary”. That being said, in delimiting the extent of the margin of appreciation in a given case, the Court must also have regard to what is at stake therein. It may also, if appropriate, have regard to any consensus and common values emerging from the practices of the States parties to the Convention (see S.A.S. v. France, cited above, § 129).
55. The Court is fully aware that a State which, like Belgium, enters into a legislative process of this kind runs the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, and that the impugned ban, even if it is not based on the religious connotation of the garment in question, mainly affects Muslim women who wish to wear the full-face veil (see S.A.S. v. France, cited above, § 149). Nor is it unaware that by imposing a ban on wearing in public places a garment designed to conceal the face the respondent State restricts to a certain extent the reach of pluralism, since the ban prevents certain women from expressing their personality and their beliefs by wearing the full-face veil in public (see S.A.S. v. France, cited above, § 149).
56. However, the respondent State, in enacting the provisions in question, sought to address a practice which it deemed incompatible, in Belgian society, with the ground rules of social communication and more broadly the establishment of human relations that are essential for living together (see the judgment of the Constitutional Court of 6 December 2012, paragraph B.21, cited in paragraph 21 above). In doing so, it sought to protect a form of interaction between individuals that was essential, in the respondent State’s view, to the functioning of a democratic society (see the above-cited judgment, paragraph B.28, cited in paragraph 21 above). From this perspective, and similarly to the situation which previously arose in France (see S.A.S. v. France, cited above, § 153), it seems that the question whether or not it should be permitted to wear the full-face veil in public places in Belgium constitutes a choice of society.
57. The Court points out, as it emphasised in S.A.S. v. France (cited above, §§ 153-55), that in such cases it has to show restraint in its scrutiny of Convention compliance, in this case in assessing a decision taken democratically within Belgian society. The allegation by the intervening organisations that the democratic process that had led to the ban on wearing the full-face veil in Belgium had not taken full account of what was at stake cannot carry weight in the present case regarding the assessment of the situation. Besides the fact that this criticism does not directly concern the by-laws in question but refers to the Law of 1 June 2011, the Court notes, obiter dictum, that the decision-making process leading up to the impugned ban took several years and was accompanied by a wide-ranging debate within the House of Representatives and by a detailed and thorough examination by the Constitutional Court of all the interests involved.
58. While it is true that the scope of the ban is broad, because all places accessible to the public are concerned, the contested provisions do not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face (see S.A.S. v. France, cited above, § 151).
59. The Court observes, lastly, that there is still no consensus within the member States of the Council of Europe as to whether or not there should be a blanket ban on the wearing of the full-face veil in public places, which justifies, in the Court’s opinion, affording the respondent State a very wide margin of appreciation (see S.A.S. v. France, cited above, § 156).
60. Consequently, having regard in particular to the breadth of the margin of appreciation enjoyed by the respondent State in the present case, the Court concludes that the ban imposed by the consolidated by-laws of the Vesdre police district can 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”.
61. The impugned limitation can thus be regarded as “necessary in a democratic society”. This conclusion holds true with respect both to Article 8 of the Convention and to Article 9.
62. Accordingly, there has been no violation either of Article 8 or of Article 9 of the Convention.
b) Alleged violation of Article 14 taken together with Article 8 or Article 9 of the Convention
63. The applicant complained of indirect discrimination. She observed in this connection that, despite the general terms in which the by-laws in question were expressed, as a Muslim woman who for religious reasons wished to wear the full-face veil in public, she belonged to a category of individuals who were particularly exposed to the ban in question and to the penalties for which it provided. That ban was much less restrictive for other people living or passing through Dison who were not Muslims and in any event did not affect the exercise by them of fundamental liberties.
64. The Government submitted that the by-laws in question were not discriminatory, as they did not, any more than French law, specifically target the full-face veil and applied to any person who wore an item concealing the face in public, whether a man or a woman, and whether for religious or other reasons.
65. The Court reiterates that a general policy or measure which has disproportionate prejudicial effects on a group of individuals can be regarded as discriminatory even if it does not specifically target the group and there is no discriminatory intent. This is only the case, however, if such policy or measure has no “objective and reasonable” justification, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be achieved (see S.A.S. v. France, cited above, § 161).
66. In the instant case, whilst it may be true that the ban imposed by the by-laws has more restrictive consequences for the exercise by certain Muslim women of some of their fundamental liberties, the measure has an objective and reasonable justification for the same reasons as those which the Court has set out previously (see paragraphs 52-62; compare S.A.S. v. France, cited above, § 161).
67. Accordingly, there has been no violation of Article 14 of the Convention taken in conjunction with Articles 8 and 9.
c) Alleged violation of Article 10, taken separately and together with Article 14 of the Convention
68. The Court is of the view that no issue arises under Article 10 of the Convention, taken separately or together with Article 14 of the Convention, that is separate from those that it has examined under Articles 8 and 9 of the Convention, taken separately and together with Article 14 of the Convention.
...
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
...
2. Holds that there has been no violation of Article 8 of the Convention;
3. Holds that there has been no violation of Article 9 of the Convention;
4. Holds that there has been no violation of Article 14 of the Convention taken together with Article 8 or with Article 9;
5. Holds that no separate issue arises under Article 10 of the Convention, taken separately or together with Article 14 of the Convention;
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Done in French, and notified in writing on 11 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Spano joined by Judge Karakaş is annexed to this judgment.
CONCURRING OPINION OF JUDGE SPANO JOINED BY JUDGE KARAKAŞ
I.
1. In the light of the Court’s judgment in S.A.S. v France ([GC] no. 43835/11, 1 July 2014), and in particular the Grand Chamber’s precedential authority under Article 43 of the Convention, I concur in the Court’s judgment.
2. However, I write separately to highlight, and as I will explain in more detail below, that although it is clear that S.A.S v France forms, as an authority of the Grand Chamber, a solid jurisprudential basis for the findings in today’s judgment, the scope and reach of the Grand Chamber’s judgment is limited and can not be readily relied upon by member States in other factual contexts.
II.
3. As required by the Grand Chamber’s findings in S.A.S v France (cited above, §§ 142), the Court today accepts that the imposition of a measure banning the wearing of a full face veil can be justified “in its principle solely in so far as it seeks to guarantee the conditions of “living together””. It is however important to understand the scope of the Court’s findings in S.A.S. As follows clearly from § 141, which refers also to § 122 of the judgment, the particular context in which the Grand Chamber accepted the invoked aim was a finding by a member State that it was “essential to give particular weight ... to the interaction between individuals and [it might] consider this to be adversely affected by the fact that some conceal their faces in public places”. The Court thus acquiesced to the State’s view that the “barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier”.
4. In other words, the Grand Chamber’s acceptance in S.A.S v France of the “living together” principle as a legitimate basis for restricting Convention rights was and is limited to the factual circumstances that were at play in that case and can not readily be relied upon by member States in other situations. There are also at least three principled reasons for not affording the Court’s findings in S.A.S further precedential authority.
5. Firstly, Articles 8 § 2 and 9 § 2 of the Convention do not provide for an explicit textual basis for this so-called “living together” principle as a legitimate aim that could justify an interference with Convention rights. In S.A.S this justification was subsumed under the aim of the “rights and freedoms of others” provided for in Articles 8 § 2 and 9 § 2, (see §§ 121-122). It is far from self-evident that it can be legally tenable to interpret the legitimate aim of the rights and freedoms of others to include the concept of “living together” in other factual situations where the State wishes to regulate human behaviour thereby restricting Convention rights.
6. Secondly, as demonstrated by my colleagues Judges Nussberger and Jäderblom in their dissenting opinion in S.A.S, the concept of “living together” is “far-fetched and vague” (see § 5). As they explain, it is difficult to define which “concrete rights of others within the meaning of Article 8 § 2 and Article 9 § 2 of the Convention could be inferred from the abstract principle of “living together” or from the “minimum requirements” of life in society”. It seems clear to me that the legitimacy of an aim must be based on objective, identifiable factors that are directly conducive to alleviating certain harms that flow from the exercise of the human right that is restricted. The rights and freedoms of others, referred to in the Convention, thus represent clear and concrete legal rights the protection of which can form a justifiable aim in restricting Convention rights. In other words, the substance of the “living together” principle is so malleable and unclear that it can potentially serve as a rhetorical tool for regulating any human interaction or behaviour purely on the basis of a particular view of what constitutes the “right way” for people to interact in a democratic society. That is anathema to the fundamental values of the autonomy of self, human dignity, tolerance and broadmindedness which are the foundations of the Convention system.
7. My third point is the close conceptual ties between the “living together” principle and majoritarianism. The requirement of “living together” has its ideological basis in some kind of societal consensus or a majoritarian morality of how individuals should act in the public space. This is nothing short of Government imposed assimilation of human interaction and behaviour. An aim invoked for restricting human rights that is in fact based on a transient majority’s opinion of what is suitable and right, and without the majority being required to define in concrete terms particular harms or mischiefs that need clearly to be addressed, can not in principle form the basis of justifiable restrictions of Convention rights in a democratic society.
III.
8. In today’s judgment, like in S.A.S. v France, the Court correctly affords special weight to the role of the domestic policy-maker. With this general approach, the Court has refined the principle of subsidiarity and introduced a procedural dimension in the application of its functional tool, the margin of appreciation afforded to the member States.
9. However, it must be made clear that the Court’s increased emphasis on the principle of subsidiarity does not give a carte blanche to member States in their choice of measures and means that restrict Convention rights even though a balancing of interests has taken place at the legislative level. History has amply demonstrated that there is an inherent risk in democratic societies that majoritarian sentiments, subsequently translated into legislative enactments, are formed on the basis of ideas and values which threaten fundamental human rights. Insular and vulnerable groups are therefore left with recourse to courts and these courts, whether national or international, like this Court, have the duty to review and detect, if possible, whether the imposition of measures, although widely accepted in the legislative forum, are triggered by animus or intolerance towards a particular idea, view or religious faith.
IV.
10. In S.A.S. v France, the Grand Chamber concluded that it could be justified, as such, to use the criminal law in the enforcement of the ban against full face veils (see § 152). However, I note that in S.A.S. the sanctions provided for by the French law were among the lightest that could be envisaged. They consisted of a fine that could amount to EUR 150 maximum, with the additional possibility for the national court to impose an obligation to follow a citizenship course (§ 152). Under the Belgian law, as interpreted by the Constitutional Court (see paragraph 21 in Dakir v Belgium and paragraph 27 in Belcacemi and Oussar v Belgium) failing to comply with the ban on full-face veils in public spaces can, on the contrary, be me met with a sentence of up to one to seven days of imprisonment in repetitive cases.
11. Therefore, it is necessary to stress that depriving a person of his or her liberty is an interference with one of the most fundamental rights under the Convention. Although it follows from S.A.S v France that criminal sanctions can, as such, constitute a proportionate measure in enforcing the ban on full face veils, it is crucial to recall that that finding was not based on a law that allows for imprisonment like the Belgian law, although the latter only allows for such a measure in repetitive cases.
12. The cases decided today are, importantly, abstract challenges to the Belgian law. They do not require the Court to assess the application of the law to a concrete set of facts where a criminal sentence as been meted out. In the absence of a concrete application of the Belgian law, it is in the first place for the national courts to decide on the severity of sanctions that can be imposed in the specific circumstances of each case and to ensure that the sanction is in compliance with the principle of proportionality (see paragraphs 57-60 in Belcacemi and Oussar v Belgium). Having said that, and taking account of the nature of the activity that is being prohibited, involving a restriction on the rights of women choosing to wear a full face veil due to their religious faith, it is my view that any deprivation of liberty in the enforcement of this ban, even in repetitive cases, would implicate a strong presumption of disproportionality of the interference with Convention rights.
V.
13. In conclusion, the core subject of the protections guaranteed by the Convention is the individual human person as reflected in his or her human dignity. At the same time, some restrictions on a person’s individual rights are a natural precondition for the harmonious co-existence of a group of human beings in a democratic society. However, so as not to unduly dilute the individual right in question, it is self-evident that Governments are not free to base their attempts at restricting Convention rights on any aim whatsoever. The legitimacy of an aim must be based on objective, identifiable factors that are directly conducive to alleviating certain harms that flow from the exercise of the human right that is restricted. It follows that public animus and intolerance towards a particular group of persons can never justifiably restrict Convention rights.
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