Information Note on the Court’s case-law 203

January 2017

OsmanoÄŸlu and KocabaÅŸ v. Switzerland - 29086/12

Judgment 10.1.2017 [Section III]

Article 9

Article 9-1

Manifest religion or belief

Imposition of fine on parents for refusing, on religious grounds, to allow their daughters to attend compulsory mixed swimming lessons at their primary school: no violation

Facts – On religious grounds, the applicants sought to have their daughters exempted from compulsory mixed swimming lessons at their primary school. Their request for an exemption was refused. Under the applicable Cantonal law, pupils could not be exempted until they reached puberty. The applicants continued to refuse to send their daughters to swimming lessons. The authorities accordingly imposed minor-offence fines on them in a total sum of 1,400 Swiss francs (CHF – approximately EUR 1,300).

The applicants, who were Muslims, complained of an infringement of their freedom of religion: in their view, even though the Koran did not instruct women to cover their bodies until they reached puberty, they were bound by their faith to prepare their daughters for precepts that would subsequently be applied to them.

Law – Article 9: The parental right to respect for their right “to ensure … education and teaching in conformity with their religious and philosophical convictions” was specifically guaranteed by the second sentence of Article 2 of Protocol No. 1 to the Convention, which was in principle a lex specialis in relation to Article 9 of the Convention. That Protocol had not been ratified by Switzerland. However, the Government had not disputed the applicability of Article 9 of the Convention, relied on by the applicants.

(a) The Court accepted that there had been interference in the exercise by the applicants of their right to manifest their religion, which was one of the aspects of the freedom protected by Article 9: as they had parental responsibility for their children, the latter’s religious education was their right by law.

(b) The disputed measure had been prescribed by law and had pursued legitimate aims: integration of children from different cultures and religions, teaching as per the curriculum, respect for compulsory education and sex equality. It had sought in particular to protect foreign pupils from any form of social exclusion. Those factors fell within the protection of the rights and freedoms of others or the protection of public order, set forth in the second paragraph of Article 9.

(c) It remained to be determined whether the measure had been proportionate. With regard to the relationship between the State and religions and the significance to be given to religion in society, the States enjoyed a considerable margin of appreciation, in particular where such questions arose in the sphere of State education.

Whilst the States had a duty to convey information and knowledge in school curricula in an objective, critical and pluralistic manner and to refrain from pursuing any aim of indoctrination, they were nonetheless free to devise their school curricula according to their needs and traditions. Admittedly, priority was given to parents in ensuring their children’s education. However, they could not rely on the Convention for the purpose of requiring the State to propose particular classes or to organise lessons in a particular way. Those principles applied all the more to the present application in that it had been brought against Switzerland, which had not ratified Protocol No. 1 to the Convention and was accordingly not bound by Article 2 of that Protocol, and whose federal organisation gave the cantons and municipal authorities wide powers in terms of organising and devising school curricula.

School played a special role in the process of social integration, particularly where children of foreign origin were concerned. Given the importance of compulsory education for children’s development, an exemption from certain lessons was justified only in very exceptional circumstances, in well-defined conditions and having regard to equality of treatment of all religious groups. The fact that the relevant authorities did allow exemptions from swimming lessons on medical grounds showed, moreover, that their approach was not an excessively rigid one.

Accordingly, the children’s interest in a full education, thus facilitating their successful social integration according to local customs and mores, prevailed over the parents’ wish to have their daughters exempted from mixed swimming lessons. That was so even though requests of this type emanated in practice, as pointed out by the applicants, only from a small number of parents on grounds of their Muslim faith. With regard to the applicants’ allegation that exemptions were granted to children of fundamentalist Christians or orthodox Jews, the Court found it unsubstantiated.

Firstly, the Court did not uphold the submission that swimming lessons were not in the curriculum of all Swiss schools, or even in the canton where the applicants lived.

The Court had always respected the particular features of the federal system, in so far as these were compatible with the Convention. School curricula fell within the powers of the cantons and the municipal authorities.

A child’s interest in attending swimming lessons was not just to take physical exercise or learn to swim – which were in themselves legitimate objectives – but more importantly to take part in that activity and learn alongside the other pupils, with no exception on the basis of the child’s origin or the parents’ religious or philosophical convictions.

Secondly, that interest in taking part in a collective activity accordingly justified dismissing the applicants’ argument that their daughters attended private swimming classes. Moreover, exempting children whose parents had sufficient financial resources to pay for private lessons would create inequality with regard to children whose parents did not have those means, which was unacceptable in compulsory education.

Thirdly, the authorities had offered the applicants very flexible arrangements so as to reduce the impact of their daughters’ attendance at mixed swimming classes on the parents’ religious convictions. Among other things, their daughters had been allowed to wear a burkini during the swimming lessons. The applicants had not submitted any evidence in support of their assertion that wearing a burkini had a stigmatising effect. In addition, their daughters had been able to undress and shower with no boys present.

Lastly, apart from the fact that the swimming lessons were mixed, no other infringement of the applicants’ beliefs was alleged.

With regard to the severity of the punishment, the minor-offences fines imposed had totalled CHF 350 (approximately EUR 325) per applicant and per child, that is, CHF 1,400 in total (approximately EUR 1,300). Having regard to the aim pursued, namely, to ensure in the children’s own interests – their successful socialisation and integration – that the parents duly sent them to the compulsory lessons, the amount of the fines, which had moreover been preceded by warnings, did not appear disproportionate.

With regard to the decision-making process in the present case, in addition to publication of a guideline on dealing with religious matters in schools, in which the applicants were able to find the relevant information, the relevant authority had personally warned them of the fine they would incur, and the school authorities had had a meeting with the applicants and had sent them two letters before imposing the fine.

The domestic courts had duly weighed up the competing interests at stake and had given properly reasoned decisions at the end of fair and adversarial proceedings.

In giving precedence to the children’s obligation to follow the full school curriculum and to their successful integration over the applicants’ private interest in obtaining an exemption from mixed swimming lessons for their daughters on religious grounds, the domestic authorities had not exceeded their margin of appreciation.

Conclusion : no violation (unanimously).

(See also, regarding the right to manifest one’s religion: Eweida and Others v. the United Kingdom , 48420/10 et al., 15 January 2003, Information Note 159 ; school curricula: Folgerø and Others v. Norway [GC], 15472/02, 29 June 2007, Information Note 98 ; display of crucifix in classroom: Lautsi and Others v. Italy [GC], 30814/06, 18 March 2011, Information Note 139 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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