Eroding the protection against discrimination: The procedural and de-contextualized approach to S.A.S. v France
| Date | 01 June 2019 |
| Author | Kati Nieminen |
| Published date | 01 June 2019 |
| DOI | 10.1177/1358229119838457 |
| Subject Matter | Articles |
Article
Eroding the protection
against discrimination:
The procedural and
de-contextualized approach
to S.A.S. v France
Kati Nieminen
Abstract
Can human rights law adequately address implicit modes of racism and gender
discrimination? This question is discussed in this article through the analysis of the
European Court of Human Rights case S.A.S. v. France (2014) concerning the ban on the
Islamic full-face veil. The so-called ‘headscarf cases’ have been thoroughly discussed by
many scholars, yet they seem to offer an endless source of different points of view.
Departing from the previous discussion on the headscarf and full-face veil cases, which
have largelyconcentrated on the questionsof personal autonomy, identity and subjectivity,
this article approaches S.A.S. v. France from the point of view of discrimination. It is sug-
gested that the Court’s procedural and de-contextualized approach to rights results in
eroding the protection against discrimination. Procedural approach refers to the Court’s
tendency to emphasize procedural aspects of the Convention rights and not to engage
sufficiently with substantive analysis. The de-contextual approach to rights on the other
hand refers to lackof sensitivity to empirical information concerningthe facts of the case at
hand. Together the procedural and de-contextual approaches inadvertently erode the
protection against discrimination of vulnerable groups, such as Muslim immigrant women.
Keywords
European Court of Human Rights, discrimination, Article 14 of the European
Convention on Human Rights, racism, gender, Islam, full-face veil, head scarf
1
Institute of Criminology and Legal Policy, University of Helsinki, Helsinki, Finland
Corresponding author:
Kati Nieminen,Institute of Criminology and LegalPolicy, University of Helsinki,P.O. Box 24 00014,
Helsinki, Finland.
Email: kati.nieminen@helsinki.fi
International Journalof
Discrimination and theLaw
2019, Vol. 19(2) 69–88
ªThe Author(s) 2019
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DOI: 10.1177/1358229119838457
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Introduction
Can human rights law adequately address implicit modes of racism and gender discrim-
ination? This question is discussed in this article through the analysis of the European
Court of Human Rights (ECtHR) case S.A.S. v. France
1
concerning the law prohibiting
for anyone to conceal their face in public places (the so-called full-face veil ban). The
article identifies weaknesses in the Court’s jurisprudence concerning discrimination and
suggests that despite the Court having announced its commitment to tackle particularly
discrimination based on gender and ethnicity, there are multiple factors that impede the
Court from addressing discrimination to its full extent (see also Arnardo´ttir, 2007, p. 38;
Arnardo´ttir, 2014; Mo¨schel, 2012, p. 492).
The headscarfand full-face veil cases in the ECtHRhave been thoroughly discussed by
legal scholars (see, e.g. Bhandar, 2009; Chaib and Peroni2014; Evans, 2006; Jackson and
Gozdecka, 2011;Marshall, 2008; Scott, 2010), yet they seem to offer anendless source of
different points of view. The issue is far from exhausted, as indicated by Lachiri v.
Belgium,
2
Dakir v. Belgium,
3
Belcacemi and Oussar v. Belgium,
4
Hamidovic
´v. Bosnia
and Herzegovina
5
and the recent cases of Achbita
6
and Bougnaoui
7
in the Court of Justice
of the European Union, as well as the views recently adopted by the Human Rights
Committee.
8
In the jurisprudence of the ECtHR, S.A.S. v. France is the case the Court
refers to in its’ more recent rulings, and therefore remains the most central of the cases
concerningthe full-face veil and the headscarf.Furthermore, S.A.S. illustrates that the logic
of the Court’s argumentation concerning religious symbols cannot be entirelypredicted by
its previous case law,as the Court’s focus shifts case by case (see Nieminen 2015). While
the cases, and the issue of Islamic clothing and religious symbols in general, have raised a
lot of attention, much of the legal discussion has centred on the questions of personal
autonomy, identity and subjectivity and their relationship to freedomof religion on the one
hand, and the competing interests of the society on the other hand. Departing from this
approach, this article contemplates the full-face veil ban from the perspective of discrim-
ination based on religion, gender and ethnicity and suggests that the prohibition of dis-
unused potential despite often being secondary in the Court’s jurisprudence.
In S.A.S., the applicant argued that the ban, ‘which undoubtedly targeted the burqa,
generated discrimination in breach of Article 14 of the Convention on grounds of sex,
religion and ethnic origin, to the detriment of Muslim women who ( ...) wore the full-
face veil’ (S.A.S. v. France, para. 80).
9
The Court, however, found that the ban did not
violate any of the freedoms enshrined in the ECHR. In this article, it is argued that the
potentially discriminatory aspects of the full-face veil ban being under-recognized result
from the Court’s procedural and de-contextualized approach to rights.
The procedural approach refers to the Court’s tendency to emphasize the procedural
aspects of the Convention rights and its willingness to accept the government’s asser-
tions at face value without scrutiny (see also De Jong and Van Rijn van Alkemade,
2012). The procedural approach consists of prioritizing the doctrine of margin of appre-
ciation over substantial analysis of the case and diluting the necessity assessment despite
insisting on ‘careful examination’ of necessity (S.A.S. v. France, para. 122). It is sug-
gested that rather than genuinely engaging with the necessity test, the Court draws its
70 International Journal of Discrimination and the Law 19(2)
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