“Religious Freedom and the Burqa Ban in Italy” by Rebeca Vázquez Gómez 

Supreme Court of Cassation in Rome, Italy by Matthias Lemm on Pixabay.

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This article is part of our “Clothed in Religion: Law and Religious Attire/Garb” series.
If you’d like to check out other articles in this series, click here.

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The Italian legal system embraces a positive concept of secularism and, in general, demonstrates a positive attitude towards the use of religious symbolism by individuals irrespective of the denomination to which they belong, as evidenced by the lack of discussion about hijabs in schools. 

However, perhaps because full veils are not perceived as religious attire, there have been attempts to ban garments such as the burqa, which covers the face completely or the niqab, which leaves the eyes uncovered in public places. Unlike in countries like Belgium or France, these attempts have so far been unsuccessful in Italy.

The Right to Religious Freedom and the Principle of Secularism 

The Italian legal system guarantees the right to religious liberty in Art. 19 of its 1948 Constitution and Art. 9 of the European Convention of Human Rights (ECHR), according to which, “…Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 

Secularism indirectly guarantees the fundamental right of religious freedom as well. The Italian Constitution does not mention this principle, but the Constitutional Court has referred to it in several decisions since its judgment no. 203 of April 11, 1989, defining laicità as the separation between the civil and religious spheres; this does not mean state indifference towards religion, but rather that the state guarantees the protection of everyone’s religious freedom in a regime of pluralism. The state must ensure conditions that promote religious freedom for all and that people belonging to a majority denomination are not more worthy of protection than those from a minority. Therefore, the Italian legal system follows a model of positive secularism, of cooperation with religious denominations, aimed at fostering the right to religious freedom. In this context, those who wear the full-face veil as an expression of their beliefs are exercising their right to religious freedom, so the use of that garment can only be restricted for reasons of public safety, health, morals, or public order, or to protect the rights and freedoms of others. 

The Absence of a General Prohibition in the National Legislation 

The banning of the burqa or niqab is usually studied from the perspective of security and public order. 

There are two relevant acts that regulate the use of clothing or accessories that obscure people’s identities in public. In its judgment no. 3076 of June 19, 2008, Point of Law 6, para. 11, the Council of State (which, among its other functions, acts as the highest court of administrative jurisdiction), interpreted those two precepts in connection with the use of full veils in public. 

“The Italian legal system follows a model of positive secularism, of cooperation with religious denominations, aimed at fostering the right to religious freedom…”

The first regulation is Art. 85 of the Public Security Act of 1931, which punishes with a fine the conduct of those who appear “masked” in public spaces. The Council of State stated that it is not applicable to the burqa or niqab because they are not “masks,” but garments used by some peoples as a form of religious practice. 

The other rule is Art. 5 of the Public Order Act of 1975. Better known as legge Reale in reference to the then-Minister of Justice who introduced the act, this law was passed to deal with the terrorist violence of the “years of lead.” It criminalizes the wearing of a helmet or anything else that conceals peoples’ identities in public “without justified reason” (senza giustificato motivo). The punishment, in this case, involves imprisonment and a fine. The Italian Council of State understood that the use of full veils for cultural or religious reasons as “justified” and therefore legal. Since the 2008 judgment of the Council of State, any possibility that these two state regulations contain a general ban on full veils disappears. 

Prohibition Only in Certain Circumstances

Although there is not a general prohibition of full-face veils, the same Council of State clarified in the aforementioned decision no. 3076 of 2008 that in some specific circumstances, related to particular places or specific or sectorial needs, the use of burqas and niqabs might not be allowed. 

An example of this is the provision contained in the same Article 5 of the legge Reale that penalizes, without exception, the use of helmets or other accessories that hamper the recognition of the individual during public events (manifestazioni), except in those sports where they are obligatory. Accordingly, any person wearing some element (full veil or other clothes such as costumes, for example) that covers their face in a public space where many people are gathered (such as during concerts, festivals, protests, etc.) could be punished. The Council of State notes that public security is assured by the absolute prohibition contained in this article and by the obligation of individuals to identify themselves (in the case of burqa or niqab, by removing the veil) when required to do so. 

Another example of a legitimate restriction is the one contained in Art. 289 of the Royal Decree of 1940, which obliges citizens to appear with their faces uncovered in the photographs of national identity documents to guarantee public security. 

Proposals for National Legislation 

In the absence of national regulations banning the general use of full-face veils in public spaces, several legislative proposals to prohibit these clothes have been introduced since 2004 (and especially after the 2008 statement of the Council of State) in the Camera dei deputati and the Senato. The majority of signatories belonged to the parties Il Popolo della Libertà, Lega Nord, and the Partito Democratico. The bills submitted during past terms of office were not passed and as of now no proposal has been introduced during the current term, which just began. Most of the proposals aimed to amend Art. 5 of the Public Order Act of 1975 (the one that bans the use of helmets or other items that make recognition difficult unless there is a “justified reason”): 

• Proposal no. C.2198 of 2007, suggested removing the “justified reason” clause so that there was no exception to the ban. This option could easily clash with other rules such as those requiring the wearing of certain accessories in the construction workplace for safety reasons. 
• Other drafts, like no. C.3368 of 2010 and no. C.467 of 2013, maintained the exception of “justified reason” but, either explicitly or implicitly, excluded religious motive from the list of “justified reasons.” These bills ran the risk of being discriminatory (they criminalized the use of those garments for religious motives and considered the use of equivalent clothes worn on the occasion of festivities, for instance, to be legal). 
• Finally, some bills, such as no. C.1992, no. C.265, and no. S.669, (submitted in 2018 during the previous term of office), only mention the face veil as an element that makes recognition difficult, in addition to the helmet (already present in the current version of the Act) and keep the exception of the “justified reason.” These bills could fail to achieve their goal too because if the veil is worn for justified reasons (as an expression of religious beliefs), its use could not be considered illegal. 

Local Regulations

Mayors also tried to prohibit these garments in their towns on the grounds of security, even though Art. 117 of the Constitution reserves legislative powers regarding security issues to the state. Some academics viewed the mayors’ attempts as motivated by a desire to protect Western culture from other identities, and answer citizens’ demands for security against those perceived as different. Security could serve as an excuse to assure the tranquility of the population and avoid fears and anxiety. Social conflicts derived from multiculturalism exert pressure on these politicians, provoking an “electoral panic” that often makes minorities’ rights more vulnerable. 

While proposals for national legislation were signed by deputies and senators of different political orientations, most of the local rules were adopted by mayors belonging to the Lega Nord, a party that considers Muslim immigrants to be invaders and globalization as a risk to Italy’s identity. 

To accomplish the general prohibition of burqas and niqabs, mayors invoked Art. 54 of the Local Government Act of 2000. Initially, this Article gave the mayor (not the municipal collegiate body) the power to enact ordinanze in cases of “urgency and severe necessity (contingibili e urgenti) to “remove grave dangers” that threatened the physical integrity of the population and urban safety. 

In 2004, some mayors passed ordinanze banning full-face veils in public areas in municipalities like Azzano Decimo, Drezzo, Calolziocorte, and Biassono. Their texts reproduced the articles of the Public Security and Public Order acts mentioned earlier and declared that burqas and niqabs were among the items that hinder the recognition of individuals. Although they kept the “senza giustificato motivo” clause (so the use of these symbols could still be justified), the ordinances gave the population the feeling that the veils had been banned. The Prefettos, state government delegates in each province, invalidated these ordinances on the basis that mayors were creating laws in a field reserved exclusively for the State. 

However, four years later, mayors felt empowered again when, in May 2008, the Italian Parliament modified Art. 54 of the Local Government Act by adding the word “anche” (“also”) before “contingibili e urgenti.” Relying on this new version of the law, mayors could pass regulations not only in cases of “urgency and severe necessity” but also in ordinary situations in which they perceived a threat to security. After that, mayors re-issued ordinanze to ban the full-face veil, and most of them removed the “giustificato motivo” clause in these versions, establishing a clear and absolute prohibition on the use of the garment in public. Montegrotto Terme, Drezzo, Cossato, Varallo Sesia, or Novara, were all affected, as were several other municipalities.  This situation changed soon. Three years later, the Italian Constitutional Court ruled on the issue through its Sentenza no. 115 of April 7, 2011 and declared Art. 54 (specifically the part that incorporated the word “also”) unconstitutional for three reasons. First, it allowed the mayors to rule on an area of individual freedom, something which is reserved for the legislative authority. Second, it was not guaranteed that the mayors would just apply the existing law, that is, it did not protect administrative impartiality. Finally, it infringed the principle of equality, since the legality of citizens’ behavior depended on the municipal territory in which it took place. 

Therefore, the power of mayors to enact regulations in ordinary situations disappeared and so did their ability to pass general prohibitions of burqas and niqabs. The mayor of Varallo Sesia was even fined for having hung a banner with images warning about a ban of full-face veils. 

The Express and Implied Objects of Protection

Both propositions for national legislation and the rules passed by mayors formally dealt with the question of burqas and niqabs as a public security matter. However, in the Preambles to the bills and mayors’ press releases, the authors allude instead to other motives. They tend to argue that the use of the full veil cannot be an expression of religious beliefs and frequently mention the dignity of the human person, women’s fundamental rights, and gender equality. They also insist that this practice is an obligation imposed by extremist ideologies as can be seen in proposal no. C.2422. The refusal to consider veil-wearing as a form of religious expression seems weak, as highlighted in bill no. C.3205 (the only proposal that suggests including an explicit permission to use the full veil in public places when it is used for religious motives) for several reasons. First, because due to the principle of secularism, the state cannot decide whether the means used to express religious beliefs are legitimate (an aspect already confirmed by the European Court of Human Rights in its judgment about Moscow Branch of the Salvation Army v. Russia (5 October 2006) and second, because the model of secularism declared by the Italian Constitution does not defend the removal of religion from the public sphere, as others, like the French, do. 

It is usually mentioned that women are forced to wear the full veil by their husbands and fathers. However, individuals are presumed to act freely and to be innocent until proven guilty, so the burden of proof lies with any person that claims otherwise. As bill no. C. 3205 indicates, the state must ensure the veil-wearing is voluntary, and should approach the involved women to show them the protection offered by the legal system.  It should also punish those who coerce women into wearing the veil by applying the existing laws regarding domestic violence. In fact, a prohibition of the full veil could provoke or increase the seclusion of women wearing the garment, who might not want to leave the house (or in some cases might not be allowed to leave) without a veil. Is it possible to create a general ban on the full veil that respects the Constitution (and international covenants)? 

“In fact, a prohibition of the full veil could provoke or increase the seclusion of women wearing the garment.”

The exercise of religious freedom can only be limited for reasons of “public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 

It seems difficult to establish a general prohibition of burqas and niqabs in the public space justified only by public safety reasons, as senators and deputies have tried to do, since it is not credible that  only this garment (and not others that also make recognition difficult, like the ones worn for work or health-related reasons) poses a threat. A ban for safety reasons seems only reasonable if it is limited to specific events or spaces in certain circumstances, as the prohibitions that already exist are. A more constitutionally-viable reasoning would be the “protection of the rights and freedoms of others,” on which basis the European Court of Human Rights has already admitted the validity of laws banning the full-face veil in France (Affaire S.A.S. c. France) and Belgium (Affaire Belcacemi et Oussar c. Belgique). The prohibition would protect the interaction between individuals when this is considered an essential element of a democratic society by the specific state. In both judgments, the Court highlights the lack of consensus among the member states of the Council of Europe about this issue and the consequent wide margin of appreciation of each state to decide about it. ♦

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Recommended Citation

Vázquez Gómez, Rebeca. “Religious Freedom and the Burqa Ban in Italy.” Canopy Forum, November 21, 2022. https://canopyforum.org/2022/11/21/religious-freedom-and-the-burqa-ban-in-italy/