The European Court of Human Rights (ECtHR) unanimously held last week that requiring two Muslim girls below the age of puberty to participate in a school’s compulsory mixed gender swim class did not violate their parents’ right to religious freedom under Article 9 of the European Convention on Human Rights (the Convention). See ECtHR, Osmanoǧlu and Kocabaş v. Switzerland, no. 29086/12, Judgment of 10 January 2017. In its January 10th decision, the ECtHR heavily deferred to the State’s policy and findings in prior national proceedings, particularly with regard to Switzerland’s conclusion that the compulsory swim course was necessary for the social integration of students of foreign origin and equality between the sexes. In weighing the interests of the State and the parents, the Court noted that significant accommodations – such as full-body swimsuits – were available to mitigate any negative impact on the parents’ freedom of religion. See id. The ECtHR ruling is the first to address the narrow issue of religious freedom protections within the context of a compulsory school sporting activity requiring the exposure of the body. [Huffington Post]
The applicants, Aziz Osmanoǧlu and Sehabat Kocabaş, have both Swiss and Turkish nationality and are the parents of two daughters subject to compulsory co-ed swimming lessons at their school. See Osmanoǧlu and Kocabaş v. Switzerland, Judgment of 10 January 2017, paras. 1, 3, 8-9. Osmanoǧlu and Kocabaş claimed that their religious beliefs prevented them from allowing their daughters to participate in the co-ed swimming program, and they refused to send their daughters to the lessons. See id. at para. 9. National legislation at that time, of which the applicants were aware, allowed non-medical exemptions from the compulsory swimming course only for children who had reached puberty; the exemption relates to the prescription in the Koran to cover the female body after puberty. See Id. Their daughters had not yet reached puberty, but they believed they should prepare their daughters for the requirement to cover their bodies. See id.
In 2008, the department of public education alerted Osmanoǧlu and Kocabaş that a fine of up to 1,000 Swiss francs (CHF) could be applied per daughter if they didn’t participate in the lessons, and that the exemptions under the legislation would not apply because the girls had not yet reached puberty. See id. at para. 10. In 2010, after several school-initiated attempts to resolve the issue, education authorities applied a fine of CHF 350 per parent and child, totaling CHF 1,400, for breaching their parental duty. See id. at paras. 11-13.
The pair then appealed to the Federal Court, which dismissed their claims in March 2012 on the grounds that the order did not violate their right to religious freedom. The Federal Court acknowledged that the swim lessons interfered with the right to religious freedom but ultimately held that the interference was justified. See id. at para. 16. The Federal Court held that the public interest of the social integration of the child was superior to the private interest of the parents’ religious beliefs, especially in light of mitigating measures like separate rooms for changing and the ability to wear a burkini. See id. at paras. 18-19.
The European Court’s Decision
The applicants submitted their complaint to the ECtHR on April 23, 2012, on the grounds that the requirement that their daughters attend a co-ed swimming course and the fine associated for non-compliance violated their rights to the freedom of thought, conscience, and religion under Article 9 of the European Convention. See id. at para. 33.
Although the ECtHR acknowledged that the refusal to grant an exemption from the swim lessons was an interference with the applicants’ right to freedom of religion, ultimately the Court concluded that the interference was justified. For an interference with the right to freedom of religion to be justified, it must be prescribed by law, intended to achieve a legitimate aim, proportionate to that aim, and necessary in a democratic society. See id. at paras. 37-95.
Legal Basis and Legitimate Aim of the Interference
The ECtHR concluded that the interference with the applicants’ rights was prescribed by law and meant to achieve a legitimate aim. To be prescribed by law, the Court noted, information about the law must be available to citizens and the law must be sufficiently precise so that citizens can accurately discern what behavior is acceptable under the law. See id. at paras. 50-51. The Court found that both requirements were met because the compulsory curriculum, including swim lessons, and the relevant legal provision were available on the Internet and because the applicants were personally warned of the consequences of non-compliance. See id. at paras. 53-55.
The ECtHR found that the refusal to let the girls out of the requirement to attend co-ed swim class was in pursuit of a legitimate aim. The Court rejected the parents’ contention that social integration was not affected by the desired exemption, and instead agreed with the government that schooling played an important role in social integration. The Court found that the compulsory practice was intended specifically to prevent the social exclusion of foreign students and to promote the equality of the sexes. See id. at paras. 60-65.
Necessity of the Interference in a Democratic Society
Additionally, the ECtHR found the interference with the right to freedom of religion was necessary in a democratic society and proportionate to the legitimate aim sought. See id. at paras. 85, 95, 105-06. Here, the ECtHR acknowledged that States are afforded significant discretion, known as “margin of appreciation,” in determining domestic policy in relation to freedom of religion, particularly when that policy involves public education. The Court found that where a State develops an educational curriculum that is objective, critical, and pluralistic, the State may do so pursuant to local traditions and needs. See id. at paras. 87, 95.
In order to determine whether the means of carrying out the legitimate aim were proportionate to that aim and therefore necessary in a democratic society, the ECtHR weighed the interests of the State against those of the applicants. The ECtHR ultimately found the State’s interest in providing a complete education and successful integration for children outweighed the parents’ interest. The Court came to this conclusion by examining several factors. See id. at paras. 96-106.
First, the ECtHR approved of the structure of exceptions from compulsory swim classes, which were only justified in exceptional circumstances that take into account the equal treatment of all religions and were not excessively rigid as evidenced by an available exemption on medical grounds. See id. at para. 96.
The ECtHR also noted that the availability of accommodations within the compulsory program mitigated the negative impact of the program on the applicants’ religious freedom. The children were able to cover their bodies with a burkini and to undress and shower privately or with children of the same sex. See id. at para. 101.
The applicants had the opportunity, the Court further found, to have the merits of their claims examined in a domestic court and were sufficiently warned of the possible consequences of keeping their daughters from attending swim class. Additionally, the Court held that the fines imposed were proportionate in light of the goal of ensuring the girls participated in the mandatory swim classes as a means of socialization and integration. See id. at paras. 103-105.
Thus, the ECtHR unanimously held that the State did not exceed the level of discretion afforded to it, that the interference was proportionate, and that no violation of Article 9 occurred. See id. at paras. 105-106.
Religion in Education
Although this ECtHR decision is the first to address the specific issue of religious freedom and compulsory swimming in Switzerland, it comes amid continuing debates over the role of religion and education in the region.
The ECtHR referenced the jurisprudence of courts in other Member States of the Council of Europe, including a 2012 case from the Constitutional Court of Liechtenstein that upheld the applicants’ right to religious freedom over the State’s interest in compulsory swim class due in large part to the threat of excommunication if an exemption was not granted, and a 2013 German Federal Administrative Court on the same issue, which was later decided by the Constitutional Court of Germany in favor of the State. See id. at paras. 31-32. [Independent: Germany] In another case, significant fines were upheld against two 15-year-old Muslim boys who refused to shake the hand of a female teacher at their school. [Independent: Switzerland]