The Swiss Ban on Minarets: Legal Implications

There are many reactions to the results from the referendum in Switzerland that tries to impose a ban on further construction of minarets in the country. However, most of them are (understandably) quite emotional.

From a political perspective a lot must be done now to assess the reasons for that vote. After all, 53,4% of the Swiss electorate voted and 57,5% of the votes have approved the ban on construction of new minarets.

However, I am much more interested in the legal analysis of that referendum. Back in October 2009 experts from the UN Human Rights Committee voiced concerns that the ban will infringe human rights protected by the International Covenant on Civil and Political Rights. They said that the initiative should have been declared inadmissible under the Swiss Constitution. The experts probably referred to a violation of art. 18 of the Covenant:

“Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”

Switzerland does not have a reservation on art. 18 and therefore it is fully applicable. That much is certain. However, we now know that being a party to this international covenant will not necessarily produce an observable direct impact. That leads us to the question – Even if Switzerland does violate the Covenant on Civil and Political Rights, what can we do?

Well, Switzerland is also part to the Convention for the Protection of Human Rights and Fundamental Freedoms. Art. 9 of the Convention:

Article 9 . Freedom of thought, conscience and religion

1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

I believe that this text will be used to challenge the ban both before Swiss courts and later – before the European Court of  Human Rights (ECHR) in Strasbourg. From what we know about the jurisprudence of ECHR, this legal challenge will probably succeed.

The issue is of great importance to the European Union as well. Switzerland is surrounded by the EU and the Union is an essential trade and political partner for the country. Provided that the ban does violate the relevant international human rights law and the European Convention on Human Rights in particular, this will inevitably strain relations between the parties and may lead to serious consequences for Switzerland.

From a legal perspective I would also like to point out that introducing such a ban is currently impossible in any EU Member State, irrelevant of the local political challenges.

 

21 responses to “The Swiss Ban on Minarets: Legal Implications

  1. Pingback: Schweiz: Diktatur der Mehrheit : Verfassungsblog

  2. Honestly speaking, I fail to see what the fuzz is all about… The people were proposed with a choice of either allowing or disallowing a construction of particular buildings. For one reason or another, they preferred to disallow. Why should a vote of certain John Smith be tainted with religious/racial bias? It may well be true that ultra-rights and many other want the same thing, but for very different reasons…

    As far as legal analysis goes, again, I fail to see anything manifestly illegal. People are against further construction of certain buildings. These buildings happen to be an integral part of someone’s religion. How do we jump from that step to manifest violation of human right “to manifest [one’s] religion or belief in worship, observance, practice and teaching”? As soon as we cross this Rubicon and call that State practice illegal, we are just one step away from introducing legal chaos in our city planning and, most likely, other parts of life. What about calls for prayer? Minaret’s original purpose is precisely that, yet public in Switzerland and abroad remained rather calm about the outright ban on the practice, thereby depriving Muslim religion of one of its most sacred practices…

    Critics of Switzerland are playing with matches when they try to balance democracy (inherently, a model of oppression of the minority by the majority) with civil liberties (which shouldn’t be confused with human rights, for, at least at this stage, none are at issue in Switzerland). The whole question is posed in the wrong way – it’s not about religious freedom, but about the ability of a State to regulate oneself. And if someone thinks otherwise, I would invite them to see if there are any religious practices/groups that are banned entirely/partially in their own countries…

  3. Вихър Георгиев

    Michael, you fail to see any infringement of international human rights law mainly because you BELIEVE that the ban was justified.
    However, it is not enough. Yes, there was a popular vote; no, it does not justify the ban.
    There is a long history of restrictions on minority religious buildings, and in general it is believed that these restrictions breach certain human rights.

    To know more you may want to read this book:
    http://www.google.com/books?id=XSnpr1ndq5kC&dq=religious+buildings,+restrictions,+human+rights&lr=&hl=en&source=gbs_navlinks_s

    As for the ability of the state to regulate itself, you need to understand that states have varying degrees of freedom to do so. For example, we no longer allow states to perform genocide on their populations. But in the case of Switzerland things are much clearer than, for example, with Sudan. So my point is that Switzerland has accepted the jurisdiction of the ECHR on infringements of the rights and freedoms of its inhabitants. The ECHR will ultimately decide whether Switzerland did or did not violate the European Convention on Human Rights.

    To learn more about the ECHR case law on religious freedom:
    http://cslr.law.emory.edu/fileadmin/media/PDFs/Journal_Articles_and_Book_Chapters/19.EILR.Martinez-Torron.Limitations_on_Religious_Freedom_in_the_case_law_on_the_European_Court_of_Human_Rights.pdf

  4. Despite the specific legal implications surrounding this referendum in Switzerland, in general I tend to agree with Michael D. above, that “it’s not about religious freedom”. The European concept of religion (contrary to the Islamic one) generally assumes that religion is a personal matter, and not all the public manifestations of religion are intrinsically unobjectionable.

    This point is stressed also in the work cited above :
    http://cslr.law.emory.edu/fileadmin/media/PDFs/Journal_Articles_and_Book_
    see page 590:
    “The internal dimension of religious freedom is absolute, while the external dimension is relative.”
    and furthermore:
    on page 591 it notes that the freedom of choice of relgion is recognized as inviolable only in it’s “strictly internal dimension”:
    “… the Strasburg juriprudence – more precisely the European Commission on Human Rights – has repeatedly refused to accept that Article 9 confers any right to make a formal statement of one’s religious choice …”

    That said, it must also be noted, that the Swiss “ban” is only “on further construction of minarets” and does not relate to already existing ones.

  5. Michael, I agree with the above response to your views about the vote not compromising Human Rights law.

    In addition, though, I wish to take issue with your view that democracy is “inherently a model of oppression of the minority by the majority”. As Samy Finer (“History on Government”) explains, most of the world’s democracies practice what he calls ‘qualified democracy’: where the “ultimate right of the majority to have its way is conceded, but that way is made as rough as possible”. Basic rights and liberties are the responsibility of independent judges. NB judges often go beyond this, in both defining and redefining those rights and liberties.

    So, these matters do not fall within the power of a democratic government. Switzerland has bound itself to accept the jurisdiction of the ECHR .

  6. Вихър Георгиев

    Lyubomir, your link is broken and I cannot read the referred material. That is why I cannot argue with you because I do not understand your position.

    Maybe you are trying to say that building minarets is somehow disproportional to the right to manifest one’s religion or belief.

    This is very difficult to support under existing ECHR case-law which appears to be quite demanding in order to justify ANY restriction of the right to manifest your belief. I have not seen any substantiated claims to that effect.

    I would like also to remind the readers of this blog that I tend to discuss points of law, and not personal beliefs or worldviews.

  7. Yes, you are right: the link is broken. It was my fault.

    And yes, it is the same link you refered to in your November 30, 2009 at 3:02 pm reply to Michael D. November 30, 2009 at 2:26 pm comment:
    http://cslr.law.emory.edu/fileadmin/media/PDFs/Journal_Articles_and_Book_Chapters/19.EILR.Martinez-Torron.Limitations_on_Religious_Freedom_in_the_case_law_on_the_European_Court_of_Human_Rights.pdf
    “Limitations on Religious Freedom in the Case Law on the European Court of Human Rights,” Emory International Law Review, Vol. 19, No. 2 (2005): 587-636 – Author: Javier Martinez-Torrón
    http://cslr.law.emory.edu/publications/publication/title/limitations-on-religious-freedom-in-the-case-law-on-the-european-court-of-human-rights/
    see page 590:
    “The internal dimension of religious freedom is absolute, while the external dimension is relative.”
    and furthermore:
    on page 591 the author notes that
    the freedom of choice of relgion is recognized as inviolable only in it’s “strictly internal dimension”:
    “… the Strasburg juriprudence – more precisely the European Commission on Human Rights – has repeatedly refused to accept that Article 9 confers any right to make a formal statement of one’s religious choice …”

    I hope now you are ready to discuss what you recommended to read “about the ECHR case law on religious freedom”.

  8. I don’t understand why it would be legally impossible for EU Member States to introduce a similar ban like in Switzerland except the fact that they could eventually be condemned by the ECHR?

    What is astonishing to me is that if the Swiss case is brought before the ECHR, the Court will have to review the people’s vote of those 57% who approved the ban. I wonder whether there has been a similar precedent on reviewing a law adopted trough referendum. It is important to mention that the Convention is legally binding only for the States and not for their citizens. Referendums are the best expression of democracy, which is also an important principle for the ECHR. Then, I think that the Court will have to be careful for not disregarding both the principle of democracy and the freedom to manifest one’s religion.

    The ECHR in its case-law is setting the minimum requirements for protection of human rights. The States can always go further in protecting human rights. If the Court says that the ban of minarets was a violation of the Convention, it would mean that every mosque in Europe should have its own minarets whereas in Arab countries it happens that some mosques have no minarets at all.

    My feeling is that if the ECHR condemns Switzerland it will be because the law imposes a general prohibition for building minarets, stating however that particular restrictions are possible.

  9. Вихър Георгиев

    Lyubomir, the second paragraph you are referring to in the article by Javier Martinez-Torrón (p. 591) refers to the right of statement of religious affiliation in a public record (the words “public record” are somehow missing from your quotation). Please, be precise in quoting texts.

    If you read the part of the article just below the quoted texts you would understand that the ECHR follows a narrow interpretation of permissible limitations of freedoms, including religious freedom. These limitations must be prescribed by law and must be necessary in a democratic society. That means that the limitation must be “proportionate to the legitimate aim pursued”.

    That is the main problem with the ban on minarets. I fail to understand what is the legitimate aim that justifies the ban. I would appreciate it if you were able to explain that to me.

    Dimitar, it will be overwhelming to explain the logic behind my statement about EU Member States since I do not have enough time for that. Please read this section:
    http://ec.europa.eu/justice_home/fsj/citizenship/fsj_citizenship_intro_en.htm

  10. First let me explain why I cited the two sentences above:
    1. Your claim that
    “in general it is believed that these restrictions [on minority religious buildings] breach certain human rights”
    is contradicted by the clarification on
    page 590 in the article by Javier Martinez-Torron:
    “The internal dimension of religious freedom is absolute, while the external dimension is relative.”

    It is obvious that “religious buildings” definitely reside in the “external dimension” (the public dimension) of the right of religious freedom and as such their construction can only be relatively (not absolutely) free from state interference.

    2. I am surprised that you do not see any contradiction between your claim that “existing ECHR case-law … appears to be quite demanding in order to justify ANY restriction of the right to manifest your belief”
    and the second paragraph I was referring to in the article by Javier Martinez-Torron (p. 591) – about the non-existence of a “right” of statement of religious affiliation in a public record.

    Furthermore, having in mind other cases of state interference in the manifestations of
    the religious choice of individuals (notably the making a personal statement of one’s religious affiliation in a public record and the wearing of a personal religious symbol – e.g. a headscarf), which already were judged as legitimate by the Court, we must acknowledge that erecting a religious building is a much more forcefull “manifestation” in comparison to them and the Court already has enough room to take a decision in favor of the ban.

    The article also makes clear that the Court explicitly accepted (in Kalac vs Turkey, 1997, and in other decisions) that the term “practice” (in Article 9) does not include each and every act motivated or influenced by a religion or a belief.

    Also, on page 595 the author (Javier Martinez-Torron) clearly states that:
    “it is not necessary to concider whether the state can provide a legitimate justification for the legislation under attack, according to Article 9 (2), because the right of freedom of thought, conscience and religion enshrined in article 9 (1) was not actually been violated.”

  11. Вихър Георгиев

    Lyubomir, it is too time-consuming for me to argue for the sake of argument and to indulge in circular discussions. You are apparently proof-reading the text by Martinez-Torrón, discovering new things, and this may be useful for you.

    However, you fail to understand that the ECHR uses standards to evaluate whether certain restriction of the religious freedom is proportional or not.

    Once again – you need to justify a legitimate aim to ANY restriction of the rights described in art. 9 of the Convention. To this point neither you, nor any of the supporters of the ban has been able to convince me that such a legitimate aim for the ban ITSELF exists.

    To put it in a more simplified way – no, you cannot ban the construction of minarets just because you want to. You need to show that a legitimate need of a democratic society demands the imposition of this PARTICULAR restriction.

    Please refer to that question in future comments.

  12. Jean-Paul Costa (President of the European Court of human rights since 19 January 2007) says:
    “it’s unlikely that an appeal against the result [of Switzerland’s recent vote to ban minarets] will end up before the court”…

    http://worldradio.ch/wrs/news/wrsnews/challenging-minaret-ban-complex-and-unlikely.shtml
    “”””””””””””””
    Tuesday, 1 December, 2009, 17:05
    Challenging minaret ban ‘complex, unlikely’

    Challenging Switzerland’s recent vote to ban minarets at the European Court of Human Rights would be a ‘complex case’, and it’s unlikely that an appeal against the result will end up before the court.

    That’s according to the head of the European court, Jean-Paul Costa, who’s assessed what would be required for a challenge in Strasbourg.

    He says that it’s not clear who could bring the case to court, as they’d have to be a direct victim of the ban. That rules out the Green Party, which had threatened to challenge a ‘yes’ vote at a European level.

    Although a popular referendum can’t be challenged in the federal court, the plaintiff would also have to exhaust all other possibilities of appeal at home before turning to the European court.
    “”””””””””””””””””””””””””””

  13. Вихър Георгиев

    This is an opinion on the jus standi (right to appeal) of the possible appellant. I believe that at least the Turkish cultural association in Wangen bei Olten (that initially applied for a construction permit) does have right to appeal.

    It does surprise me though that the President of ECHR has made open remarks on a future case. I will have to check whether this statement is taken out of context.

    And finally – a complex case is not an impossible case, as we all (lawyers) know.

  14. Some deatils about what the President of ECHR has said emerge from this publication:
    http://www.derwesten.de/nachrichten/politik/2009/12/1/news-142325959/detail.html
    Here is a (rough) translation from German:
    “Costa, however, pointed out that so far only states or parliaments had been sued in the Court of Human Rights. In addition, a complaint was not allowed there, as long as all the national official channels had been exhausted.”

    It may be the case that, in order to exhaust all national official remedies, the Turkish cultural association in Wangen bei Olten (that initially applied for a construction permit) would have to try to initiate a referendum with a wording that allows the construction of minarets?

  15. Вихър Георгиев

    Thank you for the link.

    He’s actually saying that it will be difficult to challenge the referendum result itself, because such decisions of the sovereign are not subject to appeal in Swiss courts. However, one can appeal in the relevant Swiss court the rejection of the application for the construction of the minaret. The Swiss court will decline the appeal on the basis of the new provision in the Swiss Constitution. Then the road to appeal in the ECHR will be open.

    One may say that he’s contemplating on the challenge with unease. This is understandable.

  16. Pingback: Switzerland to ban building of minarets? - Page 48 - Politics.ie

  17. Pingback: Déjà vu – the Bulgarian Idea for Referendum on Turkish News « European Union Law

  18. If The people of Switzerland dont want minarets that is their right.
    Its not about religion its about the wether or not the Swiss folk want minarets all over their landscape.
    I know when I go to Scotland I want to see Mountains and Lochs and dont want the views spoiled by Eastern minarets, if I want to see minarets cluttering the landscape I would go to Istabul or Saudi.
    It is their country and its their folks wishes those wishing to live there should respect the wishes of Swiss Citizens.

  19. @ Niklas: So the Swiss don’t mind church steeples “cluttering the landscape”?

    Islamophobia comes in many packages.

  20. french derek
    @ Niklas: So the Swiss don’t mind church steeples “cluttering the landscape”?

    Islamophobia comes in many packages.

    first of all French derek you can put the race card back in your pocket I live in The UK and like most UK Citzens are used to having ultra liberals using it at every oppertunity they can to prove they are nice ‘politically correct’ folks.
    I said at the outset it was not a religious matter and it is the democratic right of the Swiss folks to run their country as they see fit.
    As for churches yes they are permitted Switzerland wether some may like it or not is a Christian Country and one that tolerates having Mosques unlike many Arabic Muslim Countries that deliberately prohibit the building of Christian Buildings and persicute Non-Muslim minorities.
    countries as I said every country has its identity The Swiss have Moutains and Scotland Lochs and Mountains and when touristas visit that what they want to see not unlimited minarets as I also said if they wanted that they could visit a country that has an abundance of minarets.
    Heres the point no one is saying Muslim cant have Mosques simply that they must fit in to the landscape in my community (I live in a historical rural area) I cant build willy nilly on my land any building that does not fit in with the design of the local area.
    As I also said the muslim world needs to show a bit more tolerance to others and perhaps they would have a right to criticize.
    Folks who live in glass houses really should not throw stones.
    keep your Islamaphobia comments to yoursel the people of My Country no longer take such knee-jerk accusations seriously given that the race hate laws in our country discriminate against every non-minority Citizen in our Country in the most racist way.
    Reverse racism is no better than racism mate.
    Islmic people in The UK have more right as do other minorities than the majority they can call for the bombing of their host country in the UK capital, Blow up buses and trains spread AntiSemetic hatred with impunity and our politically correct police do nothing in case they are branded ‘racist’ by folks like you to be hones we are sick of it.
    If I visit or moved to Suadi I would be expected to respect the laws and wishes of the Saudi folk if you move to or live in or adopt a country as your home country then you must respect the wishes of the majority in that country.
    If you cant then leave.

  21. @ Niklas: I am not aware that my comment could be read as racist. If you felt it could, then I apologise.

    As to minarets in Switzerland. First, on my visits there I have not noticed many mosques, with or without minarets. I have noticed lots of church steeples (though these are not as tall as in the UK). Like some minarets, some church steeples are deeply unattractive. My view was – and remains – that the Swiss vote was motivated by anti-islamic feelings aka fear of the “other”).

    We both should note, though, Vihar Georgiev’s comment that such a ban would likely be illegal in an EU country. And, by the way, I agree with (and try to live by) the view that we should each observe the laws of the country in which we live or visit.

    As to your comments on the behaviour of muslims, I find it regrettable to see you repeating the same misleading views of so many non-Muslims. There is a very small minority of extremist muslims who deliberately mis-quote (or quote out of context) the Coran and other writings in the prophetic tradition of Islam to suit their own ends. There are is also another small minority who are fighting for a more “reformist”, or modern, contextual reading of those texts. The majority (and there are many millions across the world) lean neither one way or the other. They are fearful of the actions of the extremists and unsure of the reformists. So, to generalise that all muslims hold the views of the extremists is misleading at least.

    It is worth noting that what I have written about muslims and Islam could also be written about Christians and Christianity, Jews and Judaism, etc.

    For the record, I hold to no religion. I came to this position, though, through a search through many of the world’s religions.

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