March 30, 2017
By Fabienne Bretscher, PhD Student at the University of Zurich, Visiting Researcher at the Erasmus School of Law Rotterdam
In a recent judgment, the ECtHR found that the refusal to grant Muslim students exemption from mandatory swimming classes in Swiss public schools did not amount to a violation of the right to freedom of religion guaranteed by Article 9 ECHR. In its decision, the ECtHR emphasised the important role of public schools in the process of social integration into local customs and way of life. After giving an overview of the facts of the case as well as the ECtHR’s judgment, the present post sheds some light on the background of the issue of Muslim students’ participation in mandatory swimming classes in Switzerland and argues that, with its decision, the ECtHR is (again) reinforcing and legitimising intolerance against Muslims.
The Facts of the Case
The applicants are parents of three daughters, which were born in Switzerland in 1999, 2001 and 2006. They are both of Turkish origin and have immigrated to Switzerland at the age of ten, respectively twenty-one. Based on their Muslim beliefs, the applicants refused to let their two older daughters, who at that moment had not yet reached puberty, participate in mandatory mixed-sex swimming classes. The applicants stated that, although the Koran only required the covering of the female body starting from puberty, they followed an Islamic-oriented upbringing, which obliged them to prepare their daughters to these religious precepts already before puberty. Even though the children could wear a so-called burqini during the lessons, the parents saw the participation as against their (strict) religious beliefs. After some attempts of conciliation, the applicants were imposed a fine of CHF 1,400 for not fulfilling their parental responsibilities.
In the appeal proceedings, the applicants alleged that the obligation to send their daughters to mixed-sex swimming classes violated their right to freedom of religion. The final national instance, the Swiss Federal Tribunal (SFT), held that the interference with the applicants’ right to freedom of religion was necessary and proportionate. The SFT found the social integration of foreign children to be paramount. Thus, as a principle, “scholarly obligations had to prevail over the respect for religious precepts of one part of the population”. This represented a change of jurisprudence, since the SFT had held in a previous decision that the refusal to grant exemption from swimming lessons for Muslim students amounted to a violation of their right to freedom of religion. Such change of approach was motivated especially by the increased number of Muslims in Switzerland, which consists mostly of foreign nationals. According to the SFT, the dispensation of Muslim students from swimming classes had thus to be seen mostly as a “problem of the integration of foreigners” (decision 135 I 79, § 7.2).
The Judgment of the ECtHR
The focus of the ECtHR’s judgment is on the justification of the interference with the right to freedom of religion. The existence of a sufficient legal basis (§ 52 f.) and of a legitimate aim, that is the social integration of foreign children and their protection from social exclusion as elements of the legitimate aim of the protection of the rights and freedom of others and the public order in the sense of Article 9(2) ECHR (§ 64), was examined in a relatively short and concise manner. The argument brought forward by the applicants, that the family was well integrated in Swiss society and only their religion would distinguish them from the rest of the population (§ 60), was not addressed.
The central part of the judgment concerns the necessity of the interference in a democratic society. The ECtHR started off by reminding that in what concerns the relationship of the State and religion, States dispose of a considerable margin of appreciation. Furthermore, States are free to design their school curricula according to their needs and traditions (§ 95). The Court supported the arguments brought forward by the Government and found that due to the important role of public schools in the process of social integration, exemptions from mandatory classes should be granted only under exceptional circumstances. Since concessions had been made for medical reasons, the authorities’ approach was viewed as not excessively rigid (§ 96). Moreover, the ECtHR highlighted that physical education, including swimming, was of extraordinary importance for the development and health of children (§ 98). Lastly, significant accommodation of the applicants’ beliefs had been made, since the wearing of a burqini was allowed (§ 101), and the school authorities put forward a tolerant position towards different religions (§ 102). Consequently, the Swiss authorities had not exceeded their margin of appreciation (§ 105). No attention was dedicated to the argument of the applicants, that swimming classes represented only an ancillary part of the school curriculum. Also, the fact that the applicants’ requests to change to a school establishment in the same city, which did not include swimming lessons in the curriculum, had been denied, was not considered.
Although many aspects of the ECtHR’s decision in Osmanoğlu and Kocabaş v. Switzerland appear worth highlighting, the following comments focus first, on the role of intolerance towards Muslims in the SFT’s decision and second, on how the ECtHR, by not applying a strict necessity and proportionality exam, risks reinforcing and legitimising such intolerance.
Intolerance towards Muslims in Switzerland
As was mentioned above, the decision of the national authorities represents a revision of jurisprudence for the SFT. It seems thus important to look at the reasons for such change of approach in more detail by comparing the arguments brought forward by the Tribunal in its two leading decisions: In its leading decision of 1993, the SFT saw swimming lessons as an ancillary part of physical education in school. Thus, even if a student would not learn how to swim, her or his chances to conclude scholarly education or to succeed in professional life were not seriously threatened. The Tribunal emphasised that there was no legal obligation for religious minorities to assimilate to local customs and ways of life. In the decision of 2008, which changed this approach, the SFT highlighted first that, compared to fifteen years ago, the societal situation in Switzerland had changed significantly and concerns about the social integration of immigrants had grown. According to the SFT, this held especially true for Muslims, which, based on an article entitled “Switzerland on its way to becoming an Islamic state” published by a Jewish news service, were said to amount to 400’000 at the time, most of them foreigners. Consequently, the SFT held that increased measures were required to ensure the familiarisation of children from other cultures with the social conditions prevailing in Switzerland (§ 7.2), which is why exemptions should not be granted anymore.
The development of the SFT’s jurisprudence mirrors the social and political debate on migration led in Switzerland: While at first, Muslims were viewed as one of several religious minorities present on the Swiss territory, they have now been picked out as an immigrant group, which is seen as a problem and a threat. This was also confirmed by a report of the Swiss Federal Council, published in 2013, determining an “Islamisation of public debate”, showing an undifferentiated and often offensive attitude towards Islam. It was found that Islam often serves as a canvas on which to project fears surrounding the loss of national, cultural or also religious identity. As examples the prohibition of the construction of minarets, introduced to the Swiss Constitution by popular vote, or the recently launched popular initiative to prohibit the wearing of the burqa can be mentioned. The same report also found that in the school context, Muslims do generally not request more exemptions from certain classes or on certain days than other religious communities, in particular also Christian groups, such as Jehovah’s Witnesses. Yet, according to general perception, contrary to Muslims, the latter would not need to integrate, since they were “different”, but not “foreign” (fremd). Following similar double standards, the SFT, in its decision in 2008, ignored the fact that “the conflict between religious and legal obligations provoked by topics taught at public schools is generally independent of the citizenship of the individual in question”, whereas in its first decision in 1993, the tribunal had still recognised this fact and compared the case to its previous jurisprudence, for example on exemptions of members of the World Wide Church of God.
Reinforcing and legitimising intolerance
Considering the context of the decision of the national authorities, the question arises what the ECtHR’s role in such tense environment should be. The ECtHR itself reminded in its judgment that “pluralism, tolerance and a spirit of openness characterise a ‘democratic society’” (§ 84). Consequently,
although sometimes the interests of individuals need to be subordinated to the ones of a group, democracy does not amount to the constant supremacy of the opinion of a majority, but requests a balance, which ensures individuals belonging to minorities a just treatment and prevents every abuse of a dominant position (§ 84).
Consequently, considering the climate of intolerance against Muslims in Switzerland, which has also been regularly highlighted for example in reports of the European Commission against Racism and Intolerance (ECRI), it could have been expected that the ECtHR will apply heightened scrutiny in the present case.
However, although clearly stating the ideals of a democratic society inclined to respect the human rights of all its members, the ECtHR seems to refuse to fulfil its role in the realisation of such ideals in the present decision: The ECtHR avoided applying a strict necessity and proportionality exam, but instead supported the arguments brought forward by the Government without much examination. Therefore, a concrete analysis of the role of swimming classes for social integration and the prevention of social exclusion is missing. The ECtHR does not consider that swimming lessons represent an ancillary part of the school curriculum and are not offered in all public schools. Furthermore, nothing seems to suggest that the family, apart from the refusal to let their daughters participate in swimming lessons, was not well integrated in Swiss society. Lastly, the applicants were not requesting exemption from an elementary subject such as Mathematics or German, and not even physical education in general, but just from swimming lessons. Consequently, the attribution of more weight to (fictitious) social integration concerns than to the right of members of a religious minority to manifest their religious beliefs appears questionable.
Also in several other decisions concerning the situation of religious minorities mostly consisting of immigrants, the ECtHR has failed to defend its own precepts against trends of intolerance (see for example Ebrahimian v France: headscarf ban upheld for entire public sector). Concerning the school environment, in particular the cases dealing with the prohibition of wearing ostentatious religious symbols by students in French public schools are worth highlighting (see also Freedom of Religion in Public Schools: Strasbourg Court v. UN Human Rights Committee). By failing to apply a strict test of necessity and proportionality in such cases, the ECtHR reinforces and legitimises the raising intolerance, prevailing in many States, at the international level. Considering that the ECHR is based on a vision of human rights as “the foundation of justice and peace in the world” (Preamble ECHR), the ECtHR should be more restrictive when it comes to limitations of minorities’ rights, which are emerging from a climate of intolerance and prejudice.
 Reich J., “Switzerland: Freedom of creed and conscience, immigration, and public schools in the postsecular state – compulsory coeducational swimming instruction revisited”, in: 2009 International Journal of Constitutional Law 7/4, 754 ff., 763.