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ECtHR/Switzerland: Compulsory Co-Ed Swim Classes Do Not Infringe Freedom of Religion

(Jan. 24, 2017) On January 10, 2017, the European Court of Human Rights (ECtHR) held unanimously that a decision of the Swiss Federal Supreme Court, which upheld an administrative fine for the refusal of Muslim parents to send their 9- and 11-year-old daughters to compulsory co-ed swim lessons as part of their schooling, did not infringe on the applicants’ freedom of religion codified in article 9 of the European Convention on Human Rights (ECHR). (Osmanoglu and Kocabas v. Switzerland, Application No. 29086/12, HUDOC (in French); Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR), Nov. 4, 1950, 213 U.N.T.S. 221.)

The ECtHR opined that even though the Swiss authorities’ refusal to grant an exemption for the applicants’ daughters interfered with the right to manifest their religion, the interference pursued the legitimate aim of protecting foreign students from social exclusion. (Osmanoglu and Kocabas v. Switzerland, supra, at 64.)  In addition, the Swiss authorities offered flexible arrangements to reduce the impact of mandatory participation in co-ed sports activities, including the wearing of a burkini.  (Id. at 101.)  The ECtHR found that the Swiss authorities did not exceed the margin of appreciation with regard to compulsory education afforded to them in the present case in giving precedence to following the school curriculum to integrate the children over the applicants’ private interest of receiving an exemption for religious reasons. (Id. at 105).

Facts of the Case

The applicants are dual Swiss-Turkish nationals who live in Basel, Switzerland. The case at issue concerns two of their three daughters, who were born in 1999 and 2001, respectively, and attend school in Basel.  As part of their schooling, the children were required to participate in co-ed swim classes.  The applicants refused to send their daughters to the co-ed swim classes and sought an exemption.  They alleged that co-ed swim classes violated their Muslim religious beliefs, because even though the Quran did not require girls to cover their bodies until they have reached the age of puberty, the parents needed to prepare the girls for this precept.  (Id. at 6-9.)  They stated that wearing a burkini to accommodate their religious beliefs would stigmatize their daughters.  (Id. at 66.)

The Public Education Department of the Swiss Canton of Basel-City denied their request, saying that the departmental guidance document on handling questions of religion in school only provided for an exemption after the age of puberty. (Erziehungsdepartement des Kantons Basel-Stadt [Education Department of the Canton Basel-City], Umgang mit religiösen Fragen an der Schule. Handreichung [Handling of Religious Issues in Schools. Guidance] (Sept. 2015), ¶ 5.1, EDUCA.CH.) The department advised the applicants that they risked a maximum fine of CHF1,000 (about US$996) if the children did not attend the obligatory swim lessons.  (Schulgesetz [School Act], Apr. 4, 1929, Systematische Gesetzessammlung Basel-Stadt [Systematic Collection of Laws Basel-City] 410.100, § 91 ¶ 9.)  Despite several attempts by the school to mediate the conflict, the girls did not attend the swim lessons.  The applicants were fined CHF350 (about US$348) per parent and per child for a total fine of CHF1,400 (about US$1,390) for breaching their parental duty to send the children to the mandatory classes.  (Osmanoglu and Kocabas v. Switzerland, supra, at 11-13.)

The applicants’ appeal to the Court of Appeals of the Canton of Basel-City was dismissed, and they further appealed to the Swiss Federal Supreme Court. The application lodged with the ECtHR sought to reverse the decision of the Swiss Federal Supreme Court from March 7, 2012, which upheld the decision of the lower court and found no violation of the applicants’ freedom of religion and conscience.  (Id. at 14-21; Bundesgericht [Federal Supreme Court], Mar. 07, 2012, docket no. 2C 666/2011, Swiss Federal Supreme Court website.)  The German Federal Constitutional Court recently issued a similar ruling that was cited in the ECtHR judgment.  (Jenny Gesley, Germany: Court Declines Case Challenging Mandatory Participation of Female Muslim Student in Co-Ed Swim Class, GLOBAL LEGAL MONITOR (Dec. 15, 2016); see also Elin Hovferberg, Sweden: Separate Swimming Hours by Gender Justifiable, GLOBAL LEGAL MONITOR(Jan. 12, 2017).)