Posts tagged ‘European Court of Justice’


French Ban On Veils Violates Treaty

Although France historically separated church and state, they are now fighting a growing Muslim influence, by banning women from wearing veils in public places. The new law may violate not only the French Constitution, but also Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (1950), and the European Union Treaty (EU) (1992).

A Muslim woman could challenge the French law in the European Court of Human Rights (ECHR) in Strasbourg. This is the tribunal for the 46 countries that signed the ECHR. The treaty provides: “Everyone has the right to freedom of thought, conscience and religion,” including the right “to manifest his religion or belief in worship, teaching, practice and observance.”

The treaty also says: “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” (Art. 9). The treaty issue would be whether the law is needed for public safety?

The law could also be challenged in the national courts of France. French courts are not however like their American counterparts, where a judge may declare a law unconstitutional. French judges do not have the power to overturn a legislative act. The French do, however, have a Constitutional Council, that reviews legislation to determine if it conforms to their constitution. If the Council deems the law constitutional, and a court then finds the defendant guilty of violating it, there is still another court that may review it.

The European Court of Justice (ECJ) in Luxembourg serves as the tribunal for the 27-member European Union. For the case to be reviewed there, the defendant would have to ask the French court to submit the issue to the ECJ. They have no obligation to do so. While some European high courts have referred cases to the ECJ, France has not been one of them. If France referred the issue, the ECJ could declare the French law incompatible with the EU treaty, which is partly based on respect for fundamental rights.

This issue reminds me of Catholic nuns in the U.S. who would cover their bodies in black robes. We in America could never tell them how to dress. France needs to treat the Muslim veil issue the same way.