No exemption from swimming lessons: ECtHR supports Swiss practice
(Taken from Schutzfaktor M)
In its latest decision, the European Court of Human Rights (ECtHR) supported the Federal Supreme Court decision and decided that requiring two Muslim girls to take swimming lessons at school interfered with their right to freedom of religion. However, the interference was considered proportionate, because the school would have offered supporting measures and allowed the girls to wear burkinis. According to the ECtHR, member states have great leeway regarding the relationship between state and religion. It follows the Swiss argument that participating in joint activities at school is of higher interest than parents’ wishes for exemptions for religious reasons.
The complainants have Swiss-Turkish dual citizenship and live in Basel. In 2008, they requested their 9 and 7-year-old daughters to be exempted from swimming lessons. But the laws of the canton of Basel Stadt only allow for exemptions from swimming lessons as of sexual maturity. The complainants, who are strict adherents of the Muslim faith, refused to send their two daughters to mixed swimming lessons and were therefore fined by the Department of Education of the Canton of Basel Stadt. Their repeated appeals were finally taken to the Swiss Federal Supreme Court. In 2012, the Federal Supreme Court refused the complaint, upholding its 2008 landmark ruling when it changed the previous practice with regard to freedom of religion and compulsory swimming classes by deciding that school-related obligations were more important than observing religious practices for certain parts of the population.
The family then took legal action with the ECtHR. They argued that the fine they received for refusing to send their daughters to mixed swimming lessons was not based on a sufficient legal basis and was not commensurate. In their view, Switzerland had violated their right to freedom of religion (Art. 9 ECHR).
The ECtHR shares the Swiss Federal Supreme Court’s view that under Art. 9 ECtHR, requiring parents to send their children to mixed swimming lessons interferes with their freedom of religion. But the ECtHR fully supported the Swiss reasoning that in this case the restriction on religious freedom was due to a legitimate aim and thus the Swiss judgement was commensurate. In addition, the ECtHR emphasised that member states have a lot of leeway to regulate relations between the state and religion and argued that there was no common European regulation in the field of education and that member states resolved these issues in different manners.
After an extensive and detailed analysis, the ECtHR found that the interest of children to participate in a complete education including successful social integration outweighed the interests of the parents to exempt their children from swimming classes. In its argument the ECtHR completely agreed with Swiss authorities. Human rights expert Doris Angst, a board member of Schutzfaktor M, agreed with this decision since it acknowledges Switzerland’s inclusive policy which assigns special tasks to school as being commensurate but also meets the parents’ needs by offering accompanying measures. Treating all requests in the same way, regardless of religious group, community or background, remains a key factor when deciding on dispensations on a cantonal level.
- Affaire OSMANOĞLU ET KOCABAŞ c. SUISSE
ECtHR verdict (Verdict No. 29086/12), 10 January 2017 (in French)
- OSMANOĞLU und KOCABAŞ v. Schweiz
Media release by Dialog EMRK, 10 January 2017 (in German)