Information Note on the Court’s case-law No. 142
June 2011
Ouardiri v. Switzerland (dec.) - 65840/09
Decision 28.6.2011 [Section II]
Article 34
Victim
General complaint on religious grounds about constitutional provision prohibiting construction of minarets: absence of victim status
[This summary also covers the decision in the case of Ligue des musulmans de Suisse and Others v. Switzerland, no. 66274/09, 28 June 2011]
Facts – In July 2008 a popular initiative “against the building of minarets”, supported by the signatures of 113,540 Swiss citizens and seeking a partial amendment of the Swiss Constitution, was submitted to the Federal Chancellery. In August 2008 the Federal Council (Swiss Government) submitted a draft federal decree concerning the initiative to the Federal Assembly (Parliament). A message attached to the draft mentioned a risk of incompatibility with the provisions of Articles 9 and 14 of the Convention. In June 2009 the Federal Assembly passed a decree confirming the validity of the popular initiative and deciding to submit it to the vote of the people and the cantons, stipulating that it would entail the amendment of the Constitution and recommending that the people and the cantons reject it. A referendum was held in November 2009. The results, which are still provisional, indicate that 53.4% of those who voted supported the initiative and only four cantons rejected it.
In the Ouardiri case the applicant is a private individual of the Muslim faith who works for a foundation active in building relations between Islam and the rest of the world. In the case of the Ligue des musulmans de Suisse and Others the applicants are three associations and a foundation whose common focal point is the Muslim faith. They all alleged that the ban on building minarets was a violation of religious freedom that affected all Muslims and amounted to discrimination.
Law – Articles 9 and 14: All the applicants alleged mainly that the impugned constitutional provision interfered with their religious beliefs. They did not allege that it had begun to be implemented or that it had had any practical effect on them. They were therefore not direct victims of the alleged violation of the Convention. In the absence of any allegation as to the effects of the impugned constitutional amendment on his family members, the applicant in the first case could not be considered as an indirect victim either. Nor could the applicants in the second case.
Regarding the applicants’ status as potential victims, as no criminal penalty was associated with the ban on building minarets, it was not likely to influence the behaviour of the applicant in the first case, who remained free to practise the Muslim religion and publicly challenge the impugned constitutional provision. In the second case, the applicants did not suggest that the provision had begun to be implemented or that it had had any practical effect, such as the departure of their members or any loss of prestige in their eyes. That being so, none of the applicants had shown that the constitutional provision in question was likely to be applied to them. The mere possibility that that might happen at some unspecified time in the future was not sufficient.
As the applications were solely intended to challenge a constitutional provision applicable in a general manner in Switzerland, the Court considered that the applicants had not shown that there were any highly exceptional circumstances capable of conferring victim status on them. On the contrary, their applications resembled an actio popularisaimed at having the compatibility of the constitutional provision with the Convention reviewed in abstracto. Furthermore, it was clear from a Federal Court judgment of 21 January 2010, concerning the compatibility of a constitutional provision with the Convention, that the Swiss courts would be able to review the compatibility with the Convention of any future refusal to allow the construction of a minaret.
Conclusion: inadmissible (incompatible ratione personae).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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