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Port de signes religieux

On 1 October 2017, the Federal Act Prohibiting Face Veils in Public entered into force. According to its section 1, it will both promote integration through participation in society and safeguard peaceful living together (cf ECtHR 1 July 2014, 43835/11, S.A.S. / France). The explanatory notes there refer explicitly to the peaceful living together of people of different origins and religions in a pluralistic society. The only reference to religion in this act can be found in these explanatory notes : the text of the legal norm itself contains no reference of this kind. This demonstrates the legislator’s attempt to find neutral wording.
The act was based on Article 10(1)7 of the Federal Constitution, assigning the competence to legislate in the domain of the maintenance of public order, peace and safety to the Federation.

Accordingly, section 2(1) of the Federal Act Prohibiting Face Veils in Public declares it an administrative offence to veil or cover one’s face to an extent that the facial features cannot be recognised. The prohibition extends to public places or buildings, which are characterised by their accessibility by an a priori unlimited group of people. They include public streets and squares, as well as, for instance, buildings for educational or administrative purposes, theatres, museums, shops, offices, swimming pools or sports halls. The prohibition also extends to the mobile infrastructure of public and private bus, railway, aeroplane and ship transport. The penalty attached to this offence amounts to 150 euros. Face coverings that are prescribed by state law, required for artistic, cultural or traditional events, for athletic activities or for purposes motivated by reasons of health or profession, do not constitute an offence pursuant to section 2(2) leg cit. The explanatory notes clarify that the exemption covers situations where a motorcyclist continues to wear their helmet after getting off the motorcycle in order to fill the tank.
The religious implications of the Federal Act Prohibiting Face Veils in Public will have an impact on religiously motivated headgear. Accordingly, face veils, such as niqabs or burqas, will be banned in public places. It is worth noting that the political debate about the draft law defined headgear more widely to include headscarves worn in pursuance of official functions. However, the law did not alter any act regulating the characteristics of official vestments or uniforms. Accordingly, the ordinance of the minister of justice on judges’ vestments specifies the requirements for judges’ caps and robes (section 1) and requires that judges wear robes during all court hearings and that they put on their caps when pronouncing their judgements or administering oaths (section 3), without having any religious implications.
In course of the Covid-19 pandemic, legal regulations demanded wearing masks in many public places. Although most of these regulations have been suspended in 2023, the common understanding of wearing masks as a general health provision remains present. In March 2023, a specification that masks are not in conflict with the Federal Act Prohibiting Face Veils in Public has been announced.

Sources and for further information :
 Anti-Face-Covering Act.
 Der Standard, 10.03.2023.

D 24 juillet 2018    ARobert Wurzrainer AWolfgang Wieshaider

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