Minaret controversy in Switzerland

Strasbourg minaret ruling causes no surprise – Published on SwissInfo.ch, by Julia Slater and Alexander Künzle, July 8, 2011.

The European Court of Human Rights issued a long-awaited ruling on Friday, turning down two appeals from Swiss Muslims against Switzerland’s ban on building minarets. The ruling by the court in Strasbourg has been met with no surprise, by either opponents or supporters of the Swiss law.

In a popular vote November 2009 the Swiss approved an initiative to add to the constitution a ban on the construction of any new minarets. Of those who voted, 57 per cent were in favour.  Silvia Bär, deputy secretary-general of the right-wing People’s Party, which supported the minaret ban, told swissinfo.ch that the party had expected that the Strasbourg ruling would go the way it did. 

“As we have always said, the minaret initiative does not affect either the freedom of religion nor the right to practise a religion,” she said … //

…Strasbourg principles:

Swiss international human rights lawyer Walter Kälin told swissinfo.ch that the appeals laid by Ouardiri and the other plaintiffs – a group of Swiss Muslim organisations – had made no difference to the issue. It is a well-established principle that only people who are directly affected by a law can take their case to the Strasbourg court, he said. This can only be done once they have exhausted all possible recourses in their own country.

“You can’t go to Strasbourg in order to combat a law in general terms, or to have it checked,” he explained.

“If an actual group submitted a building application for a minaret, and didn’t get a permit, and then went through the Swiss courts – the administrative court up to the federal court [Switzerland’s highest legal body], and if the federal court then said: ‘You cannot have a permit because of the article in the Constitution’, it’s only at that stage that Strasbourg can look into the case.”

There is potentially such a case in Switzerland already: Muslims in the town of Langenthal in canton Bern had been given permission to build a minaret before the vote was held. This case is still going through the Swiss legal system, as opponents of minarets appeal against lower court rulings that construction can go ahead.

The fate of the Langenthal minaret is not affected by Friday’s decision in Strasbourg.

And as Kälin told swissinfo.ch, the ruling does not pre-empt appeals by future would-be builders of minarets either. They too would take their case up the Swiss courts, and could appeal to Strasbourg if they lost in the federal court. Taking a wider view, Kälin pointed out that the European Court has always been called upon to make rulings about new laws.

“At the moment these tend to be to do with religion, for a while it tended to be laws on fighting terrorism. Back in the 1970s and 1980s it was very often a matter of bans on films or books,” he recalled.

“There have always been certain circles that have called for Switzerland to withdraw from the Human Rights Convention. Thought is free, and politicians can demand this kind of thing if they want to. But withdrawal would not be a matter for a nationwide vote; it would need a majority in parliament. And I really can’t imagine such a thing.” (full text).

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