Home > Public space > Italy > 2008-04-15 - Council of State, n. 3076

2008-04-15 - Council of State, n. 3076

Public space · Italy · Dress code · Headscarf

A city council decree cannot forbid the wearing of the burqa if this wearing meets the public safety requirements

Key facts of the case - The municipality of Azzano Decimo enacted, in 2004, the council decree n. 24 forbidding the headscarf covering one’s face for public security reasons.
The prefect, following the advice of the Minister of Interior, revoked the decree as illegitimate.
The municipality of Azzano Decimo appealed to the Regional administrative court of law that rejected the appeal.
The municipality finally lodged an appeal with the Council of State that delivered its judgment in 2008.
In order to ban the burqa, the council decree referred to Article 85, 1 of the royal decree n. 773/1931 and to Article 5 of the Act no. 152/1975. Both measures intended to forbid respectively:

  • to appear disguised in public space, except during certain specific periods of the year;
  • to use safety helmet in public space or private space open to public, without any justified reason or, in any case, during public manifestations.
    The decree specifically referred to the headscarf covering the face as a mean making difficult the recognition of a person and, as such, prohibited following the cited laws.

Main reasoning of the court - The Council of State assesses the legitimacy of the revocation of the council decree made by the prefect. For public security reasons, the prefect has the main competence and the mayor is under his authority.
The Council recognised that the municipality, referring to the headscarf covering the face, only sought to prohibit the burqa worn by Muslim women, the decree having a strong cultural and political interest.
On the basis of Article 85, 1 of the royal decree n. 773/1931, the Council considered that the burqa is not a masque but the traditional cloth of certain populations used on the basis of religious convictions.
Concerning Article 5 of the Act n. 152/1975, the Council explained that the ratio of this rule is to protect public order and to avoid that safety helmets or others means could prevent the recognition of a person. Moreover, the complete ban only applies during public manifestations, in all other cases, it is prohibited to use safety helmet in public space or private space open to public, only without any justified reason.
The burqa, it is not used to avoid recognition but as a traditional cloth in some cultures and by some populations. The court did not intend to go to the heart of this matter or to verify if the burqa is a religious or cultural symbol but only recognised that it is not used to prevent the recognition of a person.
Article 5 allows in fact the wearing of a veil for cultural or religious reasons when the public security requirements are satisfied. Accordingly, if the veil is not used during public manifestations or if the person wearing it accepts to be identified and to remove it in order to allow recognition by public authorities, it is fully in compliance with the Italian system.
For all these reasons, the appeal of the municipality of Azzano Decimo is dismissed.