The ECtHR judgment of 11 July 2017 in the Dakir v. Belgium case (application no. 4619/12) and the ECtHR judgment of 11 July 2017 "Beljacemi and Oussar v. Belgium" (application No. 37798/13 ).
In 2012 and 2013, the applicants were assisted in the preparation of applications. Subsequently, applications were communicated to Belgium.
In the case, the applicants' complaints on the prohibition of wearing clothing covering a person in a public place were successfully considered. There was no violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants in the present case are Muslim women who complained of hindering them in wearing clothes covering their faces. The law of 1 June 2011 provides for punishment in the form of a fine and / or imprisonment (no more than 200 euros or seven days respectively) for concealing a person in public places. Similar bans in the past have already been introduced by certain municipalities. The applicants attempted to obtain the cancellation of one of the contested municipal acts in the State Council (the Dakir case) or the 2011 Law in the Constitutional Court (the Beljajami and Ussar case).
ISSUES OF LAW
Concerning compliance with Articles 8 and 9 of the Convention. (a) The legal basis and quality of the law. As for the municipal act in the Dakir case, the applicant did not dispute the validity of his legal framework, and sent her criticism to the law, which was subsequently put into effect. As for the Law of June 1, 2011, the European Court did not see any arbitrariness in the motivation of the Constitutional Court of Belgium. Using the same criteria, the Constitutional Court decided that the law met the requirements of predictability and accuracy, since the expression "places in which the public has access" is interpreted as not including places of worship. In addition, the contested prohibition is formulated in terms that are very close to those used in the law of France, considered in the case of "S.A.S. v. France".
(b) A legitimate aim. The objectives pursued by the challenged municipal act or the Law of 2011 included public safety, gender equality and a certain concept of "living together" in society. As in the case of S.S.S. v. France, the objective of ensuring compliance with the minimum requirements for life in society could be considered part of the "protection of the rights and freedoms of others." In addition, there was nothing to indicate that in the Belgian context greater importance was attached to the goal of equality than to other purposes.
(c) The need for a ban in a democratic society. In the case of Dakir, there were no specific arguments against the theoretically affected municipal act.
According to the preparatory material for the aforementioned law and its analysis by the Constitutional Court, the problems that sparked the discussion in Belgium were very similar to those that led to the adoption of the prohibition in France, examined in the SAS v. France case (Grand Chamber of Europe The court of July 1, 2014, complaint No. 43835/11 (Bulletin of the European Court of Human Rights, 2014. No. 11).
Proceeding from the above, the European Court referred to various considerations of this decision and especially to the following:
- the impugned ban was the choice of society, the balance was established by the legislator in a democratic way, which required some restraint on the part of the European Court;
- although the scope of the contested ban was broad, it did not affect the freedom to publicly wear any clothes or details of clothing that either did not have religious implication, which did not result in concealment of the face;
- there is still no consensus between the member states of the Council of Europe on this issue, which justifies giving them very wide margin of appreciation.
Some of the alleged specific features of the situation in Belgium were resolved in the following way.
(i) The manner in which the rule is applied in the event of a breach (Belljamie and Ussar v. Belgium). Belgium's legislation appeared to differ from the French one in that it provided, in addition to the fine, the possibility of applying punishment in the form of imprisonment. However, deprivation of liberty could only be applied in case of a repeated violation. In addition, the criminal courts had to apply the law in accordance with the principle of proportionality and the Convention, and the theoretical severity of punishment in the form of deprivation of liberty was balanced by the fact that it was not applied automatically.
In addition, in accordance with Belgian law, an offense in the form of concealing a person in a public place was "mixed", falling within the scope of criminal and administrative law. In the latter context, alternative measures were possible, which were often applied in practice at the municipal level. In the rest, the specific assessment of the proportionality of any punishment that may be imposed in connection with the impugned prohibition was within the competence of the domestic courts (the role of the European Court was limited to verifying whether the authorities of the respondent State had exceeded their discretion).
(ii) The statement that the democratic process, which led to a ban in Belgium on wearing clothing that covers the whole person, did not take into account all the relevant circumstances (the Dakir case). In addition to the fact that this criticism did not directly touch upon this by-law but referred to the Law of June 1, 2011, the Court took into account that the decision-making process for the impugned ban took several years and was accompanied by extensive discussions in the House of Representatives, as well as detailed and thorough consideration of all interests by the Constitutional Court. In conclusion, although the ban was controversial and unreservedly created possible risks in terms of promoting tolerance in society, the contested ban, taking into account the limits of discretion granted to the authorities of the respondent State, could be considered as proportional to the aim pursued, namely, the creation of conditions for "cohabitation" as element "to protect the rights and freedoms of others." This conclusion is true of articles 8 and 9 of the Convention.
The requirements of Article 8 of the Convention were not violated (unanimously).
Compliance with Article 14 of the Convention in conjunction with Articles 8 and 9 of the Convention. The complaint of indirect discrimination was rejected, because the controversial measure for the same reasons as stated above had an objective and reasonable justification.
The requirements of Article 14 of the Convention were not violated (unanimously).
In the Dakir case, the Court unanimously held that there had been a violation of the requirements of Article 6 § 1 of the Convention, since the applicant had been denied access to the court owing to excessive formalism.