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Accueil > Danemark > Questions et débats actuels > 2018 > L’interdiction de dissimuler le visage

L’interdiction de dissimuler le visage

31 May 2018 : the ban on face covering

On May 31st, a majority in the Danish Parliament has adopted a ban on face covering, which in effect is and has been discussed as a ban on wearing niqab or burka.

The ban, which amends the Danish Criminal Code, comes after renewed discussions which took place in 2017 and 2018. The question of criminalizing the wearing of a burka or niqab was discussed in 2009 and 2010, but the debate quieted down after a scholarly report had concluded that a maximum of 200 women were wearing a burka or a niqab in Denmark.

There are currently no case law or reports on whether the amended article in the Criminal Code has been in use yet. The applicability of the article has been significantly limited and does not apply, where a qualifying purpose is found.

The bill that amends the Criminal Code article 134 (c) now sounds like this :

’§ 134 c. The person who in a public place wears clothing that conceals the face is punished with a fine. Subsection 2. The prohibition referred to in subsection 1 shall not apply to the covering of the face which serves a qualifying purpose. ’ (See the bill with comments, in Danish)

On the ‘qualifying purpose,’ and in the comments to the bill, the Ministry of Justice unfolds the applicability of the ban.

“3.2.3. The prohibition of wearing clothing that conceals the face, will not apply when concealing the face serves a credible purpose.

It will depend on a concrete assessment in each case of the concealing of the face, as covered by the prohibition, if it serves a qualifying purpose. In an assessment of this, emphasis will be placed on the nature of the garment, the actual use and the situation in which the garment is worn.

Outside a context where a cover of the face serves a qualifying purpose, such a cover will be prohibited. The fact that a person is on his way to or from a place or context, etc., where face covering serves a qualified purpose, does not in itself make it possible to cover the face during normal transportation thereto or therefrom.

As an example of covering the face that serves a qualified purpose, it may be mentioned that a person wearing a scarf, hat and the like for protection against cold will not be subject to the prohibition if, as the case - considering the seasons and weather conditions - must be considered as usual and reasonable attire.

As a rule, the prohibition does not include costumes and masks used in carnival, regular games, Halloween, dressing parties, sports events and the like. In addition, the prohibition does not apply for example to masks and helmets in connection with hunting, fishing, sports and the like – such as safety or camouflage equipment - if used in the usual and reasonable manner.

The prohibition does not include, for example, medical dressings and the like, due to health reasons. It can also serve a qualified purpose to cover the face in a concrete working context, if it happens in a customary and fair manner, as the case may be. This may include the use of protective or security equipment or the like, e.g. protective helmet and respiratory protection. It may also serve a qualified purpose when, for example, staff in a shop, a shopping mall, etc. is dressed in a "store mask" or the like, if done in a usual and reasonable manner.

Incidentally, covering of the face will obviously serve a qualified purpose if the cover is made in compliance with legal requirements and the like, for example, traffic law rules for the use of a helmet when driving a motorcycle etc.

To the extent that a cover of the face in itself is regarded as an expression of opinion it may be protected by freedom of speech. This should be included in the assessment of whether the cover serves a qualifying purpose.

Similarly, it will be included in the assessment whether a cover of the face occurs in a way - and in a concrete context - closely related to the exercise of religious freedom, etc. It is assumed that the covering of the face for religious reasons as a clear starting point is not prohibited when it comes to a specific religious act or the like, for example, in a religious building or in connection with a wedding or funeral ritual, etc. Outside of such concrete religious contexts - including, for example, normal transport to and from the place of a religious act -, it will not suffice to refer to the fact that a covering of the face is for religious reasons.…”

In this commentary by the Ministry of Justice, it is quite clear that circumstances to which the ban applies are limited, and there is great room for interpretation by the individual police officer – also in the light of dress-up parties, freedom of speech and freedom of religion (albeit in a narrow interpretation). In addition, it is left up to the individual officer to asses if this is at all a criminal matter or a matter for social services :

“If the police suspect that the person is subject to negative social control, for example, in connection with a breach of the ban on cover, i.e., because the person expresses compulsion or other pressure to wear face-covering clothing, then the police must assess whether there is a basis for investigating a criminal offense or whether the person should be offered help and support, and so on.”

All in all, this bill and amendment are designed – in part – to provoke and discourage the ‘Islamist elements’ and – in part – to satisfy right wing politicians and voters. Obviously, symbolic uses both of them.

Looking through the whole text of the commentary, clearly they ‘pulled the teeth’ of this particular ‘barking dog,’ long before it was ever enacted.

It is doubtful whether we will see in Denmark any serious such cases. If we do, it will be by activists – i.e. the ‘Women in Dialogue group’ who showed up in parliament wearing the full veil – who will deliberately seek to test the limits of the bill in law enforcement and in the courts.

20 juin 2018