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By Whitney Hayes, January 28, 2010

A Swiss People’s Party poster supporting the initiative states, “Stop! Yes to the minaret ban.”

On December 16, 2009, Hafid Ouardiri, an Algerian-born Muslim living in Switzerland and former spokesman for the Geneva Mosque, filed a complaint with the European Court of Human Rights challenging Switzerland’s recent constitutional amendment barring the construction of new mosque minarets. The ban, approved in a November 2009 referendum by 57.5 percent of the Swiss population and 22 of the State’s 26 cantons, will add a new Article 72(3) to the Swiss Constitution plainly stating, “The construction of minarets is prohibited.” Ouardiri argues that the amendment violates European Convention of Human Rights Article 9 (the freedom of thought, conscience, and religion); Article 13 (the right to an effective remedy); and Article 14 (the prohibition of discrimination).

The Swiss People’s Party, a conservative political party previously criticized for its racist campaigns, and several other small groups, initially proposed the amendment in April 2007. Although recognizing that the Swiss Constitution guarantees the freedom of religion, the website for the Federal Popular Initiative Against the Construction of Minarets argues that “the minaret is the symbol of a political-religious claim that . . . places religion above the State.” Because minarets represent respecting religion more than the laws of the State, these structures, according to the site, represent “[an] attempt . . . to impose a legal system based on sharia in Switzerland,” thus threatening the supremacy of the Swiss federal government.

Although the Swiss government opposed the initiative and urged citizens to reject it, the government has said that it will not overturn the amendment. Micheline Calmy-Rey, the Federal Councilor of the Swiss Federal Department of Foreign Affairs admitted in an interview with Le Monde that although “the [Swiss] government and political parties were surprised by the result” of the referendum, a government reversal is unlikely. To dismiss the referendum would be “to suppress participative democracy,” continues Calmy-Rey.

The Swiss government adamantly asserts that the minaret ban does not reflect anti-Islam sentiment or impact the ability of Muslims to practice their religion; however, the referendum fueled fears of an increasingly hostile environment for Switzerland’s 400,000 Muslims. Farhad Afshar, leader of the Coordination of Islamic Organizations in Switzerland, revealed to The New York Times that the “[m]ost painful for [Muslims] is not the minaret ban, but the symbol sent by this vote. Muslims do not feel accepted as a religious community.”

If accepted by the Court, this case would pose an interesting scenario. The Swiss government, which opposed the initiative, would serve as the party defending the vote. According to Ouardiri’s attorney Pierre de Preux, “We will have both the plaintiff Hafid Ouardiri and the defendant, Switzerland, saying the same thing. The court is still free to decide whatever it wants, but it sure is going to help the request.”

The Court has yet to determine whether to admit the case. The President of the Court, Jean-Paul Costa, admitted that a judgment on this case would be difficult, as it “represents a complex legal problem.” To present a case before the Court, the applicant must have exhausted all other available domestic judicial remedies; however, the Swiss Federal Tribunal, Switzerland’s highest court, lacks jurisdiction over cases contesting referenda. Even if the Court accepts the application for a hearing, a decision is unlikely for several years.