Spain / High Court of Catalonia, Contentious Administrative Court Section 5

Country

Spain

Title

Spain / High Court of Catalonia, Contentious Administrative Court Section 5

View full Case

Year

2015

Decision/ruling/judgment date

Thursday, January 29, 2015

Incident(s) concerned/related

Harassment

Related Bias motivation

Religion
Gender

Groups affected

Muslims

Court/Body type

National Court

Court/Body

High Court of Catalonia, Contentious Administrative Court (Tribunal Superior de Justicia de Catalunya)

Key facts of the case

The Civic Behaviour Ordinance of the city of Reus (Tarragona, Catalonia), approved on 21 July 2014, established that it was not allowed to access municipal buses or facilities wearing "the full veil, burka, niqab, balaclava, integral veil (…) or other clothing or accessories that prevent or hinder identification (…)".
Certain associations, especially Islamic cultural associations, requested the repeal of these articles. Finally certain articles of this Ordinance were deemed as unconstitutional and were repealed by the High Court of Catalonia.

Main reasoning/argumentation

The fundamental argument contained in the judgment was that the use of the veil by some women is part of their religious freedom, which is a fundamental right recognized by the Spanish Constitution (Art. 16), that can only be further regulated by parliament legislation.

The Catalonia High Court noted that the Ordinance of Civic Behaviour of Reus is equal to the Ordinance of Lleida City Council (see STS 693/2013).

The judgment nullified the City Council Ordinance because the City Council did not have the authority to limit freedom of religion.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The associations (especially Islamic cultural associations) requested the suspension of these articles because they violate their right to religious freedom and discriminate against them.

All municipal ordinances prohibiting the wearing of the burka in public spaces are thus deemed to be unconstitutional.

Results (sanctions, outcome) and key consequences or implications of the case

The High Court of Catalonia has decided to suspend those two articles (10.4 and 44) of the Civic Behaviour Ordinance of the city of Reus.

The Court noted that there was no change in the legislation and it therefore applied the reasoning of the Supreme Court’s ruling in a similar case in Lleida that cancelled the Lleida City Council Ordinance banning the wearing of full-face veils in public city spaces.

Key quotation in original language and its unofficial translation into English with reference details

"...por vulneración del derecho de libertad religiosa, art. 16.1 CE, al no existir Ley previa con base a la que pudiera limitarse el ejercicio de tal libertad en lo relativo al uso del atuendo cuestionado....."
"...tanto en cuanto al reconocimiento de la competencia del Ayuntamiento de Lleida para establecer tal limitación, como a las razones materiales para
aceptar dicha limitación... "

"...for violation of the right to freedom of religion, article 16.1 SC, there is no prior law as basis which might constrain the exercise of such freedom with regard to the use of the questioned attire, being rejected ..."
"... both in terms of the recognition of the jurisdiction of the Lleida City Council to establish such limitation, and the material reasons for accepting such limitation ..."

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