S.A.S. v. FRANCE(2014) 사건에 관한 판례평석: 복면착용 금지법이 종교적 신념을 표명할 자유에 대한 부당한 제한인지 여부

France adopted loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l'espace public prohibiting the concealment of one's face in public places on 11 October 2010 and the law went into effect on 11 April 2011. On the same day the law came into force, a French woman born in 1990 and lives in France referred to as S.A.S filed a complaint against the French Republic. In the applicant’s submission, she is a devout Muslim and she wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. The applicant emphasized that neither her husband nor any other member of her family put pressure on her to dress in this manner. The applicant added that she wore the niqab not to annoy others but to feel at inner peace with herself. The applicant argued that the law violated articles 8 on the right to privacy and 9 on the freedom of religion of the European Convention of Human Rights. France argued with regard to articles 8 and 9, that the exceptions in paragraph 2 of these articles applied. Paragraph 2 of article 9 allows limitations on the right to religion if the limitations “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.” Specifically, France invoked three grounds for limiting the right to wear face coverings in public spaces: “respect for equality between men and women”, “respect for human dignity” and “respect for the minimum requirements of life in society”. The Grand Chamber held that prohibiting the concealment of a person’s face in public did not violate the European Convention on Human Rights. Although the court did not find the French government's position that the ban was valid due to gender equality or human dignity concerns, but accepted France's claim that a ban was necessary for “living together” harmoniously was within in law. The court drew a connection between “living together” and the legitimate aim of the “protection of the rights and freedoms of others” which is enumerated in paragraph 2 of articles 8 and 9 of the Convention. It also underlined that states had a wide margin of appreciation in this kind of matter because the court has not found any consensus on the issue among the Council of Europe Member States. This paper examines the Court's judgement and reviews the reasoning with consideration of the applicant's claim and its counterpart's argument.