CONCURRING OPINION OF JUDGE SPANO JOINED BY JUDGE KARAKAÅž

I.

1. In the light of the Court ’ s judgment in S.A.S. v France ([GC] no. 43835/11, 1 July 2014), and in particular the Grand Chamber ’ s precedential authority under Article 43 of the Convention, I concur in the Court ’ s judgment.

2. However, I write separately to highlight, and as I will explain in more detail below, that although it is clear that S.A.S v France forms, as an authority of the Grand Chamber, a solid juris ­ prudential basis for the findings in today ’ s judgment, the scope and reach of the Grand Chamber ’ s judgment is limited and can not be readily relied upon by member States in other factual contexts.

II.

3. As required by the Grand Chamber ’ s findings in S.A.S v France (cited above, §§ 142), the Court today accepts that the imposition of a measure banning the wearing of a full face veil can be justified “in its principle solely in so far as it seeks to guarantee the conditions of “living together””. It is however important to understand the scope of the Court ’ s findings in S.A.S. As follows clearly from § 141, which refers also to § 122 of the judg ­ ment, the particular context in which the Grand Chamber accepted the invoked aim was a finding by a member State that it was “essential to give particular weight ... to the interaction between individuals and [it might] consider this to be adversely affected by the fact that some conceal their faces in public places”. The Court thus acquiesced to the State ’ s view that the “barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier”.

4. In other words, the Grand Chamber ’ s acceptance in S.A.S v France of the “living together” principle as a legitimate basis for restricting Convention rights was and is limited to the factual circumstances that were at play in that case and can not readily be relied upon by member States in other situations. There are also at least three principled reasons for not affording the Court ’ s findings in S.A.S further precedential authority.

5. Firstly, Articles 8 § 2 and 9 § 2 of the Convention do not provide for an explicit textual basis for this so-called “living together” principle as a legitimate aim that could justify an interference with Convention rights. In S.A.S this justification was subsumed under the aim of the “rights and freedoms of others” provided for in Articles 8 § 2 and 9 § 2, (see §§ 121-122). It is far from self-evident that it can be legally tenable to interpret the legitimate aim of the rights and freedoms of others to include the concept of “living together” in other factual situations where the State wishes to regulate human behaviour thereby restricting Convention rights.

6. Secondly, as demonstrated by my colleagues Judges Nussberger and Jäderblom in their dissenting opinion in S.A.S , the concept of “living together” is “far-fetched and vague” (see § 5). As they explain, it is difficult to define which “concrete rights of others within the meaning of Article 8 § 2 and Article 9 § 2 of the Convention could be inferred from the abstract principle of “living together” or from the “minimum requirements” of life in society”. It seems clear to me that the legitimacy of an aim must be based on objective, identifiable factors that are directly conducive to alleviating certain harms that flow from the exercise of the human right that is restricted. The rights and freedoms of others, referred to in the Convention, thus represent clear and concrete legal rights the protection of which can form a justifiable aim in restricting Convention rights. In other words, the substance of the “living together” principle is so malleable and unclear that it can potentially serve as a rhetorical tool for regulating any human interaction or behaviour purely on the basis of a parti ­ cular view of what constitutes the “right way” for people to interact in a democratic society. That is anathema to the fundamental values of the autonomy of self, human dignity, tolerance and broadmindedness which are the foundations of the Convention system.

7. My third point is the close conceptual ties between the “living together” principle and majoritarianism. The requirement of “living together” has its ideological basis in some kind of societal consensus or a majoritarian morality of how individuals should act in the public space. This is nothing short of Government imposed assimilation of human interaction and behaviour. An aim invoked for restricting human rights that is in fact based on a transient majority ’ s opinion of what is suitable and right, and without the majority being required to define in concrete terms particular harms or mischiefs that need clearly to be addressed, can not in principle form the basis of justifiable restrictions of Convention rights in a democratic society.

III.

8. In today ’ s judgment, like in S.A.S. v France , the Court correctly affords special weight to the role of the domestic policy-maker. With this general approach, the Court has refined the principle of subsidiarity and introduced a procedural dimension in the application of its functional tool, the margin of appreciation afforded to the member States.

9. However, it must be made clear that the Court ’ s increased emphasis on the principle of subsidiarity does not give a carte blanche to member States in their choice of measures and means that restrict Convention rights even though a balancing of interests has taken place at the legislative level. History has amply demonstrated that there is an inherent risk in democratic societies that majoritarian sentiments, subsequently translated into legislative enactments, are formed on the basis of ideas and values which threaten fundamental human rights. Insular and vulnerable groups are therefore left with recourse to courts and these courts, whether national or international, like this Court, have the duty to review and detect, if possible, whether the imposition of measures, although widely accepted in the legislative forum, are triggered by animus or intolerance towards a particular idea, view or religious faith.

IV.

10. In S.A.S. v France, the Grand Chamber concluded that it could be justified, as such, to use the criminal law in the enforcement of the ban against full face veils (see § 152). However, I note that in S.A.S. the sanctions provided for by the French law were among the lightest that could be envisaged. They consisted of a fine that could amount to EUR 150 maximum, with the additional possibility for the national court to impose an obligation to follow a citizenship course (§ 152). Under the Belgian law, as interpreted by the Constitutional Court (see paragraph 21 in Dakir v Belgium and paragraph 27 in Belcacemi and Oussar v Belgium ) failing to comply with the ban on full-face veils in public spaces can, on the contrary, be me met with a sentence of up to one to seven days of imprisonment in repetitive cases.

11. Therefore, it is necessary to stress that depriving a person of his or her liberty is an interference with one of the most fundamental rights under the Convention. Although it follows from S.A.S v France that criminal sanctions can, as such, constitute a proportionate measure in enforcing the ban on full face veils, it is crucial to recall that that finding was not based on a law that allows for imprisonment like the Belgian law, although the latter only allows for such a measure in repetitive cases.

12. The cases decided today are, importantly, abstract challenges to the Belgian law. They do not require the Court to assess the application of the law to a concrete set of facts where a criminal sentence as been meted out. In the absence of a concrete application of the Belgian law, it is in the first place for the national courts to decide on the severity of sanctions that can be imposed in the specific circumstances of each case and to ensure that the sanction is in compliance with the principle of proportionality (see paragraphs 57-60 in Belcacemi and Oussar v Belgium ). Having said that, and taking account of the nature of the activity that is being prohibited, involving a restriction on the rights of women choosing to wear a full face veil due to their religious faith, it is my view that any deprivation of liberty in the enforcement of this ban, even in repetitive cases, would implicate a strong presumption of disproportionality of the interference with Convention rights.

V.

13. In conclusion, the core subject of the protections guaranteed by the Convention is the individual human person as reflected in his or her human dignity. At the same time, some restrictions on a person ’ s individual rights are a natural precondition for the harmonious co-existence of a group of human beings in a democratic society. However, so as not to unduly dilute the individual right in question, it is self-evident that Governments are not free to base their attempts at restricting Convention rights on any aim whatsoever. The legitimacy of an aim must be based on objective, identifiable factors that are directly conducive to alleviating certain harms that flow from the exercise of the human right that is restricted. It follows that public animus and intolerance towards a particular group of persons can never justifiably restrict Convention rights.