The ECHR and the Constitution have much to teach us about the (justified) bans on the burqa

In a press release dated 21 September, Amnesty International Italy expressed deep concern over the Prime Minister’s statements, not only regarding the proposal to set a cap on the number of foreign pupils in classes – a limit which, in practice, schools have already been required to comply with since 2010 – but also regarding the possible introduction of a ban on wearing the burqa and niqab at school. While it remains to be seen how widespread such garments actually are in Italian schools – La Tecnica della Scuola cites 500–600 cases – a ban on them should not give rise to any particular divisions. Burqas and niqabs, in fact, do not merely cover the head, but completely obscure the face. Several European countries have already introduced similar restrictions: most recently Portugal, whilst France did so in 2010. It was precisely the French ban that was brought before the European Court of Human Rights in Strasbourg, which, in 2014, in the case of S.a.s. v. France, ruled it compatible with the freedom of religion protected by Article 9 of the European Convention on Human Rights. According to the Court, prohibiting the concealment of the face in public spaces could be necessary to ensure the minimum conditions for social life – that ‘vivre ensemble’ which presupposes mutual recognition and interaction between people. Critics observed that a blanket ban risked being disproportionate, as it treated all public places in the same way.

In the Italian context, however, the scenario would be much more limited: it would concern schools. While it is true that ‘school is open to all’, as laid down in Article 34 of the Constitution, and that the right to education cannot be subject to discriminatory conditions, it is equally true that parents’ freedom to educate their children, including in accordance with religious precepts, must be reconciled with the need to create an environment conducive to learning, social interaction and equality amongst pupils. The European Court of Human Rights itself, on 16 May 2024, ruled on an even more sensitive case: the ban on wearing any visible symbol of religious affiliation in schools in the Flemish Community of Belgium. In that case too, it ruled out a violation of Article 9, recognising the objective of safeguarding the neutrality of public education. If, therefore, even more far-reaching bans fall within the margin of appreciation granted to States, a restriction on the full covering of the face in schools does not appear to be incompatible with either the ECHR or the Italian Constitution, particularly if it is aimed at protecting the social interactions of pupils in an open environment geared towards gender equality. It is anticipated that Amnesty International will ultimately concur.