ECtHR renders judgment in Belcacemi and Oussar v. Belgium

On 11 July 2017, the European Court of Human Rights rendered its judgment in the case of Belcacemi and Oussar v. Belgium (application no. 37798/13). The Court held, unanimously, that there had been no violation of Articles 8 (right to respect for private and family life) and 9 (freedom of thought, conscience and religion) of the ECHR, and no violation of Article 14 (prohibition of discrimination) taken together with Articles 8 and 9.
The case concerned the ban on the wearing in public of clothing that partly or totally covers the face under the Belgian law of 1 June 2011. The Court found in particular that the restriction sought to guarantee the conditions of “living together” and the “protection of the rights and freedoms of others” and that it was “necessary in a democratic society”. Firstly, as in the case of S.A.S v. France, the Court found that the concern to ensure respect for the minimum guarantees of life in society could be regarded as an element of the “protection of the rights and freedoms of others” and that the ban was justifiable in principle, solely to the extent that it sought to guarantee the conditions of “living together”. In that connection, the Court explained that, through their direct and constant contact with the stakeholders in their country, the State authorities were in principle better placed than an international court to assess the local needs and context. Therefore, in adopting the provisions in question, the Belgian State had sought to respond to a practice that it considered to be incompatible, in Belgian society, with social communication and more generally the establishment of human relations, which were indispensable for life in society. It was a matter of protecting a condition of interaction between individuals which, for the State, was essential to ensure the functioning of a democratic society. The question whether the full-face veil was to be accepted in the Belgian public sphere was thus a choice of society.
Secondly, as regards the proportionality of the restriction, the Court noted that the sanction for non- compliance with the ban under Belgian law could range from a fine to a prison sentence. Imprisonment was reserved, however, for repeat offenders and was not applied automatically. In addition, the offence was classified as “hybrid” in Belgian law, partly under the criminal law and partly administrative. Thus, in the context of administrative action, alternative measures were possible and taken in practice at municipal level.

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