Update: 12.08.2010

The complaint against the ban on minarets has been nullified

The complaint against Switzerland because of the ban on minarets in its constitution is void. On 8 July 2011, the European Court of Human Rights justified its decision mainly with the fact that the appellants could not render plausible to be victims of a violation of the European Convention of Human Rights. But the judgement does not yet contain a fundamental verdict of the ECHR regarding Art. 72 para. 3 of the Constitution concerning the ban on minarets.

Initial situation

On 15 December 2009 a Swiss muslim lodged a complaint in Strasbourg against the vote on the ban on minarets. A further complaint was launched by three muslim organisations as well as a foundation. In general, such complaints can only be launched if they have previously passed through all instances of a state (Art. 35 ECHR). But it is possible to appeal to the court directly, if a victim can prove that the ordinary legal measures will not work, e.g. because a negative decision can be expected beyond doubt. This condition does not apply in general but has to be assessed by the court on a case-to-case basis.

Decision from Strasbourg

The judges in Strasbourg decided on 8 July 2011 that the plaintiffs against the Swiss minaret ban are not not entitled to claim (file references 65840/09 and 66274/09, in German). According to the European Court of Human Rights the plaintiffs would only be entitled to claim if they had previously launched or planned a building application which would have been rejected by the authorities. But the plaintiffs had not argued that they had been planning to build a mosque with a minaret. The mere possibility that they could do that in a distant future did not suffice according to the ECHR. In addition, the whole procedure would have had to pass through all national instances. For this reason, the complaint was considered invalid and the case dismissed. With its decision the ECHR shares the Swiss position which was previously imparted in an official statement by the Federal Office of Justice. The decision from Strasbourg is final.

No decision in favour of the ban on minarets

It remains to be pointed out that the Strasbourg decision may not be interpreted as an approval of the Swiss ban on minarets, as was argued in certain media. It remains to be seen whether, and to what degree, the ban on minarets goes along with the freedom of religion which is guaranteed in the European Convention of Human Rights. But the ECHR could only decide on this if a building application for a minaret would be rejected and the muslims affected would fail before the Swiss legal system with a respective lawsuit.

Fiery discussions on the political agenda

Besides legal contentions on the possibility of appealing in Strasbourg, the vote on the minaret  ban has provoked a political earthquake in Switzerland. Various proposals have been made by different actors from the political and academic scenes.

Two professors of international law – Prof. Thürer and Müller from the Universities of Zürich and Berne – elaborate a renewed constitutional text called the «tolerance article». They enunciate principles meant to govern the public appearance and activities of religious communities. This tolerance article is mainly based on the principle according to which religious communities should behave with consideration for others when acting within the public sphere. In the end, this tolerance article is meant to replace the one containing the minaret ban.

On the other extreme of the political spectrum, supporters of the minaret ban warn that they are ready to consider a denunciation of the European convention of human rights in case Strasbourg would condemn the Swiss sovereign decision. They propose to denunciate the treaty, make the necessary reservations and then re-ratify the convention. Although maybe legally possible, this idea does not seem to be  politically viable for Switzerland. Moreover, this does not settle the matter regarding other international treaties like the UN Covenant on civil and political rights which cannot be denunciated.

How to solve the tensions between direct democracy and human rights?

These proposals and the political discussions around them have highlighted in a new way the tensions between the Swiss direct democratic tools (constitutional initiative and referendum) and the protection of human rights. At present time, the main issue refers to the prerogative of the Swiss parliament to declare an initiative invalid. According to the Swiss constitution, the Parliament must declare an initiative invalid if it does not respect a formal and material unity and if it does not respect peremptory norms of international law. The main difficulty lies in the fact that it is far from clear which norms correspond to this category, even if some of the fundamental principles of the international order are recognized as such (e.g. prohibition of torture, of genocide, of slavery, of war of aggression, respect of the non-refoulement principle).

Furthermore, it is not only a better definition of which norms are to count as peremptory norms that is currently discussed, but also the best institutional device to decide upon the validity of popular initiatives. With respect to this institutional issue, it is increasingly questioned whether the Parliament is the best place to settle this matter. The chancellery, with an appeal possibility in front of the federal court, could be in a better position to properly discuss the validity of a proposal.      

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