Assessment of Switzerland’s ban on minarets from the perspective of the ECHR
by
CÜNEYT YÜKSEL*

Freedom of thought, conscience and religion was recognized as a fundamental freedom after a prolonged struggle. In the Western world, this fundamental freedom started developing, along with other rights and freedoms, with the Renaissance. With time, it was incorporated into democratic constitutions, national laws and finally into various international declarations and conventions. In this way it was given both national and international safeguards. This freedom was embodied in Article 18 of the United Nations Universal Declaration of Human Rights which states that “everyone has the right to freedom of thought, conscience and religion.” The freedom of thought, conscience and religion, was recognized as a universal right under Article 9 of the European Convention on Human Rights. It was also embodied in the 1966 International Covenant on Civil and Political Rights and also in the 1990 Charter of Paris for a New Europe, where it was noted that freedom of thought and expression are a must for a democratic society.

On the issue of the freedom of conscience and religion it should primarily be noted that, belonging to a religion brings with it a personal participation in the worldly system stipulated by the religion. This participation, when given freely, takes on more value and meaning. In this regard, freedom of religion is a manifestation of freedom of thought. That is to say, it is a particular categorization of freedom of thought within the context of freedom of conscience. This fundamental freedom entitles persons to freely choose their religion and beliefs. Freedom of religion includes the right to manifest a chosen religion either by practicing or observing the teachings of this religion and also protection against being forced to disclose a chosen religion.

The struggle for freedom

Throughout history, freedom of religion had to overcome many struggles in different societies and cultures before arriving at its present form and being safeguarded by both national and international documents. The most important element of this freedom is a person’s right to freely choose his religion without discrimination, intolerance or any other external pressure from the state or any other authority. Therefore, with respect to the manifestation of religion through the observance of religious obligations, it is doubly important for authorities to keep the places for communal worship and other tools serving this purpose immune. From the standpoint of Islam, mosques are considered places of communal worship, and therefore observance of the religion in these places is under the protection of freedom of religion and conscience.

 The European Court of Human Rights describes Article 9 of the convention as a tool towards achieving the goal of a democratic society. According to the court, within the context of the convention, freedom of thought, conscience and religion is one of the cornerstones of a democratic society. The scope of the freedom protected by Article 9 includes “freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” The court expressed the scope of the article in the Kokkinakis v. Greece case as follows; “While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to ‘manifest [one’s] religion’.”

 In the case of Manoussakis and Others v. Greece, the court found the restriction imposed on the use of a residence as a place of worship to be in breach of Article 9 of the convention. The court stressed that Greece had violated the convention by limiting the rights of sects other than Orthodox with strict rules and pointed out it was also against the requirements of a democratic society. In the Kjeldsen and Others v. Denmark, Hoffman v. Austria and many other cases, the court ruled that a person’s freedom of worship was to be protected in accordance with the person’s freedom of religion and conscience.

 In accordance with Articles 9 and 14 of the convention, Switzerland as a state party is under the obligation to protect freedom of thought, conscience and religion within its territory. Freedom of thought, conscience and religion entitles persons to fulfill their religious obligations as envisioned by their religion and in accordance with its teachings. Violating the integrity of mosques, which are places of worship in Islam, by banning minarets, is a breach of Article 9 and also, Article 14 of the convention regarding discrimination. On the other hand, Article 9/2 of the convention cites the legitimate limitations that can be placed on this fundamental human right and freedom. Under the relevant articles of the convention and the court’s jurisprudence, the limitation imposed in Switzerland neither serves a legitimate purpose nor is necessary in a democratic society. On the contrary, the ban is contradictory to the protection of fundamental rights and freedoms of minorities, which is one of the fundamental principles of democracy.

In addition, Switzerland accepted this ban through a referendum. Some of the basic principles of international human rights law are safeguarding fundamental rights and freedoms in constitutions and international documents and not using means such as popular vote to limit these rights and freedoms. During the 1950s and ‘60s in the US, the fundamental rights and freedoms of Afro-Americans were recognized directly by the state and without putting the issue to referendum. It is unfortunate to see the opposite of this practice appearing right in the heart of Europe. If we accept the referendum as a correct means, we would enable the illegitimate interference of the majority in the minority. The ban of minarets by referendum has created a situation in Switzerland that is not acceptable for any modern state in the 21st century.

An injury to dialogue

Putting a ban on minarets to referendum is a serious injury to dialogue between cultures and religions. This situation is a show of obvious intolerance towards Muslims and Islam, manifested through the ban. A lack of dialogue between cultures and religions is one of the most important issues of our time. Especially in the age of globalization, walls between nations have been demolished and barriers in most areas have been overcome.

As globalization took on speed and societies got together with “other” societies, they did not try to learn about and understand these “other” societies, but chose to try to impose their principles on them. Enhancing dialogue between cultures and religions is important in order to replace power plays with universal values in order to create a fairer world. Mardin, my election district and hometown, has been embracing the basic values of dialogue between cultures and religions for hundreds of years and constitutes one of the best examples in the world in this regard. What are some of these values? Freedom, democracy and tolerance. Mardin is a city that has been the scene to seven cultures, seven languages and seven religions for 1,000 years. Throughout history, Mardin has been the most tolerant place in Mesopotamia. To this day, calls to prayer are made in unity with the ring of church bells. Mardin is a city were tolerance, respect, unity and brotherhood are governing principles; and the people respect each others’ religion, places of worship and dress. The world today is trying to keep this spirit alive and infuse these principles into its citizens.

Upon a proposal of the European Commission, 2008 was declared the European Year of Intercultural Dialogue. This decision emphasized that the increasing cultural difference in Europe further necessitated intercultural dialogue. Our prime minister, as co-president of the Alliance of Civilizations, became aware that prejudice and a lack of dialogue cause the rift between cultures to widen. He started taking steps to prevent this. However, the recent developments in Switzerland have dealt a heavy blow to these efforts. Civilizations and democracy will never allow the rights of a minority to be violated by the majority. In this regard, we would like Switzerland to take Mardin’s example of solidarity between cultures and beliefs as an example.

Indeed, this is one of the greatest aims of the democratic initiative of our government. We would like to develop a future where there is national unity, tolerance and peace at every corner of the country. One of the most important aspects is to create a democratic environment whereby fundamental rights and freedoms of persons are safeguarded by the state. The democratic initiative does not tolerate any kind of discrimination between any ethnicity and increases the scope of fundamental rights and freedoms in accordance with the principles of equality. Reactions towards the profound violation of fundamental rights and freedoms in Switzerland, which defines itself as a civilized and democratic state, shows that our government has taken steps in the right direction with the commencement of the democratic initiative. We have to act quickly, in the name of democracy, human rights and freedoms, in order to prevent similar referendums from taking place in other European countries. Swiss laws and international law require groups, cantons, nongovernmental organizations, political parties and similar assemblies whose rights have been infringed upon to apply to the Federal High Court at first for the cancellation of the law. The decision can be taken to the European Court of Human Rights only after the exhaustion of domestic remedies.

Switzerland is the first European country to ban minarets; the only supporters of this decision were extremist right-wing parties. It is expected that extremist right-wing parties in Denmark, Austria, France, Italy and the Netherlands will bring up the issue of banning minarets as well. It is clear that the main issue at hand is prejudice towards Muslims and even all minorities. If modern countries, together with the Swiss public and authorities, do not take a stand against this issue and do what is necessary to overcome its effects, as our minister of foreign affairs stated, the issue will grow like an avalanche and start a cultural cold war. Civilization is not a tool enabling the strong to oppress the weak. On the contrary, it should serve as a tool to balance the right to a humane existence between the strong and the weak. Humankind has been witness to lamentable situations where the strong oppressed the weak. So as not to give an opportunity to these events, the global community has to be sensitive for the sake of fundamental human rights and freedoms.