Är ett generellt förbud mot bärandet av ansiktstäckande klädesplagg förenligt med Europakonventionen?

Sammanfattning: The introduction of a general ban on the use of face-covering clothing has raised the question of a ban implies limitations of the right to manifest a religion. In this regard, it is clear that the meaning and scope of the right to freedom of religion, stated in Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), plays an important role. For Article 9 to be applicable in this instance requires the use of face-covering clothing to be considered as an expression for, or a way to, practice a religion. The approach of the European Court on Human Rights (ECtHR) has previously been that the manifestation has to have some real connection with the belief and be considered as normal or generally accepted for the specific religion, to enjoy the protection of Article 9. In recent practice, however, a new pattern in which the ECtHR instead put emphasis on whether the complainant's subjective attitude to the issue can be discerned. This means that the individual perception of what is an expression of a religion now can be the basis for the assessment of what should constitute the exercise of a religion. In the case where the individual perception is used, wearing the clothing is considered to be a manifestation of a religion and therefore shall enjoy the protection of Article 9. This new individual-oriented approach means that there is a shift in the assessment of Article 9(1) to Article 9(2). This shift means that the ECtHR accepts that the clothing are religious and instead of examining what is to be regarded as a religious act or what is to be regarded as a manifestation of a religion, examines the extent to which a State is entitled to make restrictions on an individual's right to practice religion. Given that the wearing of face-covering garments in the future is likely to be regarded as a manifestation of a religion, the main emphasis is on assessing the ability to restrict the right to religious practice. The ECtHR has already tried cases regarding a ban on the use of Islamic headscarves. The difference between these cases and the present analysis is that the cases the ECtHR tried considered the traditional Muslim headscarves that do not cover the face and the ban applied only to certain specific localities. In these cases the ECtHR considered that a ban was called for in some specific circumstances, including the fact that the ban applied to a school. The current situation is therefore different. A general ban on the use of face-covering clothing in public places poses a greater interference in an individual's life and in his ability to practice his religion. The focus of the thesis has therefore been on the extent to which a state may impose measures which limit the right to freedom of religion. The main argument for a ban is that a restrictive measure is introduced to protect other people's rights and freedoms, thereby attempting to strike a balance between the positive and negative part of the freedom of religion. A problem with the wearing of face-covering religious clothing is that doing so ends up in the middle of the positive and negative freedom of religion, since both the right for a person to practice their religion and another's right not to be subjected to religious manifestations needs to be considered. It is a delicate balance. When compared to the case where the ECtHR accepted a ban on the use of religious clothing, it is necessary to point out the fact that the ban dealt with the case of doing so at a school and this is a crucial fact in the assessment of its merits. The effect an authoritarian teacher's use of religious clothing may have on young receptive students is not comparable to the effect the use of the garments have in the general community. In the case of a ban that applies to all public places, the ECtHR's previous reasoning is not applicable because the specific conditions prevailing in a school are not the same as they are in all public places. The result is that it is possible to introduce a ban on the use of face-covering clothing, only to the extent that the ban applies on certain specific locations such as school areas. As for a general ban regarding all public places, is a far too drastic measure in an individual's life. This thesis therefore sets out to show that a general ban on the use of face-covering clothing in public places would thus constitute a violation of the right to freedom of religion stated in Article 9 ECHR. The main issue of this thesis relates to the freedom of religion, even if the rules prohibiting discrimination in Article 14 ECHR are discussed in the introduction of a ban on the use of face-covering clothing in public areas. Given that Article 14 is subsidiary to Article 9, the ECtHR is most unlikely to consider whether there is also a violation of Article 14. The conclusion reached is that the ECtHR would likely find that a general ban on the wearing of face-covering clothing in public areas is not consistent with the ECHR. By focusing on the assessment of Article 9(2), conditions are created so the scope of the article is not narrowed down. It is then not an assessment on what should be regarded as a manifestation of a religion, but focus instead on what restrictions would be considered legitimate. The shift made in the assessment means that the ECHR protection and flexibility of Article 9 increases, since no manifestation is likely to fall outside the protection of Article 9.