Some months ago, Rights International Spain published a detailed analysis of the European Court of Human Rights (ECtHR) ruling in the case of S.A.S vs. France. This analysis by Dr. Eugenia Relaño, an expert in human rights and religious freedoms, forms part of the series of articles “Legal Debates,” published by RIS and written by scholars from outside the organization.

In the case in question, the court ruled that the absolute prohibition of the use of a full veil in public spaces is not contrary to the European Convention of Human Rights. Inasmuch as the debate over the veil has reopened all over Europe due to the Dutch government’s intention to pass a similar prohibition and certain sectors using the ECtHR’s ruling to justify such a measure, we reproduce here a fragment of the article cited above in which, after analyzing the arguments made by the court, the expert presents her own conclusions.

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The arguments used in the ruling of the European Court of Human Rights in the case S.A.S v. France for the prohibition of the full veil in public spaces lack legal consistency and reflect a crude and superficial bias. Their lack of solid legal grounding is made up for by emotional appeals, which have been reinforced and amplified by the media. The objective of the legal system is to eliminate legal uncertainty and detect how discretion is used in the application of the law, or more specifically in this case, in the limitation of the exercise of rights. The legal and practical viability of a general prohibition of the full veil in public spaces should be called into question, largely because it is unnecessary: specific prohibitions, which are both partial and sufficient, already exist in order to guarantee a basic respect for public security and order. We must reiterate that indignation or feelings of confusion or rejection towards certain practices are insufficient grounds for limiting fundamental rights. As the European Court of Human Rights has pointed out, freedom of expression may not be curtailed at the dictates of popular opinion; were that the case the slightest disturbance would suffice to make freedom of expression and of assembly impracticable. One of the foundational elements of the theory of human rights is the notion of proportionality. An "imperious social need" as the justification of a right may not be founded in a legally indeterminate notion such as "living together."

It should be noted that the court holds that the object the French law pursues is a legitimate one: the protection of the rights of others, specifically the establishment of the necessary conditions to guarantee individuals’ "living together." If we accept this argument, we come upon a new meta-legal concept —"living together"— which becomes a moral imposition of public dignity at the hands of the social majority, and may justify restrictions on the full exercise of individual liberty. This represents a dangerous totalitarian turn, as well as an illegitimate intrusion of the state into the defining of human dignity, a strictly personal and non-transferrable act that corresponds exclusively to each individual. From a legal standpoint, dignity may not be externalized and turned into a public ethics of "living together" in order to protect individuals from their own dignity and from the exercise of their own rights and fundamental freedoms. This is legally meaningless, and clearly an instrument of oppression.

In the case S.A.S. v. France, the ECtHR has committed an unhealthy degree of legal activism, justifying a general prohibition on the basis of the supposed requirements of living together, which — while they may be supported by a social majority — have scarce legal foundations. By definition, the limitation of rights must be proportionate to specific circumstances of time and place; a general limitation is not a restriction based on circumstances but a pure and simple prohibition of the public exercise of various freedoms. Sadly the ECtHR has overstepped its own precedents in this case. In Eweida et al. v. the United Kingdom, the court ruled that the right to publicly manifest one’s religion is a fundamental right because a healthy democratic society must tolerate and sustain pluralism and diversity, but also because individuals who have made religion a central part of their lives have the right to communicate their conviction to others.

As Thomas Hammarberg, the former human rights commissioner for the Council of Europe, indicated: "The fact that public discussion in a number of European countries has almost exclusively focused on what is perceived as Muslim dress has created the impression of targeting one particular religion. Some of the arguments have been clearly Islamophobic and have certainly not built bridges or encouraged dialogue." The interests of the social majority not only pushes these women into a schizoid situation by confining them to their homes as if they were Mr. Hyde, it also flaunts a notion of "living together" based in the "public ethics" of a Dr. Jekyll who hides his contradictions and fears.

The impact of these prohibitions has disproportionately fallen upon a specific population — Muslim women — in flagrant violation of the principle of non-discrimination on the basis of belief, religion and gender. It has not been demonstrated that these measures are necessary for safeguarding public security. On the contrary, this prohibition has demonstrated to what extent the law can be forced to bow to a culture of fear, dressing speculations and stereotypes up in legal garb: very dangerous to a plural and healthy democracy.

The full text of the Legal Debate (in Spanish) is available here.