In a judgment (in French) handed down on 10 January 2017, the European Court of Human Rights unanimously ruled that Switzerland had not violated the right to freedom of religion under Article 9 of the European Convention on Human Rights by refusing to grant an exemption to two Muslim girls from attending mixed-sex swimming lessons.
The case concerned Muslim parents who refused to send their daughters to compulsory mixed-sex swimming lessons. The case was brought by two girls’ parents after they were fined 1,300 euros for breaching their ‘parental duty’ by refusing to allow their daughters to participate in the swimming lessons on religious grounds.
Switzerland has not ratified the Protocol to the European Convention on Human Rights, which includes the right to education and the obligation of States to respect ‘the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’. Therefore, this article was not invoked. However, the right to education is guaranteed by Article 19 of the Swiss Constitution.
The Court observed that the law in question was designed to protect foreign pupils from any form of social exclusion and to guarantee equal opportunities in education, and that schools played an important role in social integration. Attendance at the swimming lessons was designed not only to teach children to swim and to be physically active, but more importantly to participate in the activity with all other students, with no exception on account of the child’s origin or the parents’ religious or philosophical convictions. Interestingly, the case seems to give little agency to the two girls concerned. The principle of the ‘best interests of the child’ was not mentioned.
The Court held that given the importance of compulsory education for a child’s full development, exemption from certain lessons was only justified in very limited circumstances. The Court considered that the fact that the law allowed for exemptions on medical grounds as well as for students who had reached the age of puberty, showed that the law not excessively rigid. Furthermore, the Swiss authorities had offered ‘very flexible arrangements’ by allowing the girls to wear a burkini during the swimming lessons and to undress with no boys present.
The Court held that the child’s interest in a full education, which facilitates their development and social integration, took precedence over the parents’ wish to have their children exempted from the swimming lessons on religious grounds. The Court accepted that the right to freedom of religion had been interfered with, but found that Switzerland had not overstepped the margin of appreciation in prioritising compulsory education.
The official press release issued by the Registrar of the Court is available in English here.
The full judgment is available in French here.