This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.
Abstract:
In November 2009, Switzerland passed a popular initiative prohibiting the construction of minarets. In response, Mr. Ouardiri, a Muslim living in Switzerland, challenged the legality of the ban in the European Court of Human Rights (ECtHR). Mr. Ouardiri alleged that the ban violated his rights under Article 9 of the European Convention on Human Rights (ECHR), which guarantees religious freedom, as well as Article 14, providing that no one can be discriminated on the grounds of religion. The Court declined to rule on the merits of the case, holding that Mr. Ouardiri neither qualified as a direct, indirect, nor potential victim of the minaret ban. The Court appeared to base its decision primarily on the fact that Mr. Ouardiri had never applied for a permit to build a minaret in Switzerland.
Primary Source: Ouardiri v. Switzerland, App. No. 65840/09, Eur. Ct. H.R. (June 28, 2011), https://hudoc.echr.coe.int/eng#{%22dmdocnumber%22:[%22887981%22],%22itemid%22:[%22001-105619%22]}.
Switzerland’s direct democracy provides ample mechanisms for its citizens to shape the country’s laws. One such mechanism is the popular initiative by which the country’s constitution is continuously amended. Citizens may launch nation-wide ballot initiatives on a wide variety of issues by gathering 100,000 signatures in 18 months.[1] As long as the subject matter of the ballot does not violate peremptory norms of international law (jus cogens), its substantive limit is largely unrestricted.[2]
The “prohibition of minarets” was such a nation-wide ballot initiative. On November 29, 2009, Switzerland voted on whether minarets should be prohibited in the country. The initiative passed, and the next day Switzerland’s constitution was amended: Article 72 of the Swiss Constitution now provides that “[t]he construction of minarets is prohibited.”[3]
The minaret ban engendered widespread protest. Just two weeks after the minaret initiative was passed, the Federal Supreme Court received two complaints challenging the constitutionality of the minaret ban. Both complaints, however, were dismissed.[4] The Federal Court held that it lacked the competence to review the legality of the initiative ex post; it could only do so if a private party was actually denied a permit to build a minaret.[5] In view of the limited domestic options, Mr. Hafid Ouardiri, a Muslim living in Switzerland, together with a number of religious associations, launched a lawsuit against the Swiss government at the European Court of Human Rights (ECtHR).
Mr. Ouardiri’s complaint was based on three legal arguments. Firstly, he alleged that the minaret ban amounted to a violation of Article 9(a) of the European Convention on Human Rights (ECHR), which guarantees “the right to freedom of religion.”[6] He contended that the minaret ban was in “total contradiction”[7] to Article 9(a), as it failed to reconcile the interests of diverse religious groups and safeguard the social peace among believers.[8]
Mr. Ouardiri further argued that the ban violated Article 9(b), which provides that religious freedom may only be limited in the “interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others.”[9] He claimed that none of the justifications provided by the initiators – namely that the ban sought to limit the “expansionist power symbol of Islam that questions fundamental constitutional rights such as the equality of sexes”[10] – come under the purview of 9(a).
Secondly, Mr. Ouardiri asserted that the minaret ban also violated Article 14 of the ECHR, which guarantees that rights of the Convention “shall be secured without discrimination on any ground such as … religion.”[11] As the minaret ban only applies to Islam, Mr. Ouardiri argued, Muslims were specifically discriminated against.
Lastly, Mr. Ouardiri contended that because the Federal Court in Switzerland decided not to adjudicate on the legality of the minaret ban, he thus effectively lacked a domestic remedy, violating Article 13 of ECHR.[12]
After laying out the complaint of Mr. Ouardiri, the ECtHR declined to rule on the merits of the case. The court held that Mr. Ouardiri did not qualify as either a direct, indirect, or potential victim, which are ECtHR’s admissibility criteria as postulated under Article 34 of the ECHR.[13] A direct victim is someone who has suffered directly from an alleged violation. The Court held that Mr. Ouardiri never established that he in fact suffered from the minaret ban; he merely maintained that the ban conflicted with his religious beliefs and that he was offended by it.[14] He never argued that he either applied for a permit to build a minaret or that his permit was denied.[15] By the same logic, the Court continued, Mr. Ouardiri also did not qualify as an indirect victim: he did not demonstrate that anyone close to him was adversely affected by the minaret ban.[16] Finally, the Court held, Mr. Ouardiri cannot obtain the status of a potential victim, a status that is awarded in only very specific and exceptional circumstances.[17] Someone may qualify as a potential victim if (a) their victimhood cannot be established because of the secret nature of the law challenged (for example, where a law allows for the clandestine interception of phone lines by intelligence agencies) or (b) a law requires a person to change their behavior in the near future.[18] As Mr. Ouardiri had not articulated any intentions to build a minaret in the near future, neither of these conditions, the Court concluded, was satisfied.
The Court’s ruling that Mr. Ouardiri is not a victim of the minaret ban is noteworthy for a number of reasons. Firstly, it may be argued that the Court appears to inadvertently define what it means to practice Islam. By stating that the minaret ban does not make Mr. Ouardiri a victim, the Court may implicitly be reasoning that a minaret is not an essential part of the religious practice of Islam. Secondly, it is important to note that the Muslim religious community does not at all feature in the Court’s decision. This omission may be particularly pertinent when assessing whether or not someone is a victim of a law banning minarets. Finally, the case is particularly interesting in the way the Court defines what it means to be a victim with regard to one’s right to exercise freedom of religion. Why is it that the legality of the minaret ban can only be challenged if someone’s application to build a minaret is denied?
Ouardiri v. Switzerland is a striking case. Almost ten years after the minaret ban was introduced, the law is still firmly enshrined in Switzerland’s Constitution. However, the law may soon face its first challenge. The “House of Religions” – an inter-religious initiative that provides a place of worship for multiple religions – announced that it seeks to build a minaret on its premise. Should its application be denied, the minaret ban may finally be contested in earnest.
Notes:
[1] Ch.ch, How to launch a federal popular initiative, https://www.ch.ch/en/demokratie/political-rights/popular-initiative/how-to-launch-a-federal-popular-initiative/ (last accessed Oct. 25, 2019).
[2] Bundesverfassung [BV] [Constitution] Apr. 18, 1999, SR 101, art. 139, para. 3.
[3] Id. at art. 72, para. 3.
[4] Lorenz Langer, Panacea or Pathetic Fallacy? The Swiss Ban on Minarets, 43 Vand. J. Transnat’l L. 863, 883 (2010).
[5] Id.
[6] European Convention for the Protection of Human Rights and Fundamental Freedoms art. 9(a), Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR].
[7] Ouardiri v. Switzerland, App. No. 65840/09, Eur. Ct. H.R. (June 28, 2011), https://hudoc.echr.coe.int/eng#{%22dmdocnumber%22:[%22887981%22],%22itemid%22:[%22001-105619%22]}
[8] Id.
[9] ECHR, supra note 6, art. 9(b).
[10] Open Society Justice Initiative, Quardiri v. Switzerland, https://www.justiceinitiative.org/litigation/ouardiri-v-switzerland (last accessed Oct. 20, 2019).
[11] ECHR, supra note 6, art. 14.
[12] Id. art. 13.
[13] Ouardiri v. Switzerland, supra note 7.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.