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Chapter 13 Interactive key cases
France adopted a law which provided a blanket (ie irrespective of circumstances) ban on the Muslim full-head veil (so-called ‘burqa ban’). This was challenged on several human rights grounds. France argued that freedom of religion may be restricted on grounds of public safety and ‘respect for the minimum set of values of an open and democratic society’. This set of values encompasses gender equality, human dignity, and ‘respect for the minimum requirements of life in society’ or ‘living together’, a fundamental principle of French constitutional law.
The ECtHR focused on the right to freedom of religion. It accepted that the restriction pursued a legitimate aim, namely the need for a State ‘to be able to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud’. However, the burqa ban itself was not necessary in a democratic society and, absent ‘a general threat to public safety’, it was held to be disproportionate. Although the ECtHR was not prepared to accept that religious freedom restrictions were justified on gender equality and public safety grounds, it did go on to note that the burqa ban ultimately satisfied the legitimate aim of ‘living together’ under ‘the protection of the rights and freedoms of others’, despite the fact that this is not listed in Arts 8(2) and 9(2) ECHR as a legitimate restriction.