Monday 11 July 2011

Swiss Minaret Decisions

Ever since 2009 when the Swiss people voted, through a referendum, to include in their Constitution a general ban on building minarets, it was to be expected that the European Court of Human Rights would be called upon sooner or later to express itself on the compatibility of such a ban with the ECHR. Last week produced an inconclusive intermediate step. In two almost identical admissibility decisions the Court declared a number of complaints by Swiss Muslim organisations and the former spoekesman for the Geneva mosque inadmissible. The Court concluded that none of the applicants could be seen as a victim of the ban. The cases, Ouardiri v. Switzerland and Ligue des Musulmans de Suisse and Others v. Switzerland (both in French only) read as short but detailed treatises on the victim requirement in the ECHR. The press release in English can be found here. It is also available in German.

The Court held that the applications amounted to an actio popularis, which the Strasbourg system does not allow for. The applicants were not direct victims nor indirect (such as for example the family of a deceased person can sometimes be). They had not shown, according to the Court, that they were themselves affected by the ban - none had argued to plan to build a minaret. Nor could they be seen as potential victims in the Court's view. The notion of 'potential victim' is only exceptionally used in Strasbourg. A classic example is the Dudgeon case of 1981: a homosexual man in Northern Ireland complained about legislation criminalising acts between male adults. Even though he had not been convicted himself, the Court in that case held that the legislation forced him to change his behavior and therefore affected him. In all cases the Court requires some kind of link between the applicant and the prejudice he or she claims to have suffered. The Court's application of this principle to the particular case may not be entirely surprising, but is not uncontested. It distinguished Mr Ouardiri's case for example from cases criminalising homosexual behavior not only on the ground that the minaret ban does not criminalise behavior but also on the ground that it is not prone to influence the applicant's behavior who remains free to exercise his islamic religion. Nolens volens, the Court here indirectly makes an assessment of what falls within the scope of exercising one's islamic religion: having a minaret from which the muezzin calls the faithful to the mosque to pray does not fall within that ambit apparently. This may be a defensible assessment, but it is a stance nonetheless. Another point is that the discrimination aspect is barely touched upon as a result of the angle from which the Court approached the cases. Let us suppose that the Swiss would have voted for a ban on Muslims or non-whites to marry other Swiss (again without criminalising, but just making it practically impossible). Would the Court then still declare applications inadmissible until an applicant had professed direct plans to marry? Difficult issues ...

One may note, by the way, that the decision was taken by a majority of votes. Apparently the seven judges of the second section of the Court could not agree. It's a pity all the more that admissibility decisions never include separate opinions.

Obviously the issue may return to Strasbourg, once there will be an applicant whose concrete request to build a (mosque with) minaret was formally refused by the Swiss authorities. But the whole battle may be fought in Swiss courts themselves. To be continued, no doubt!