THIRD SECTION
 
 
 
 
 
 
CASE OF OSMANOĞLU AND KOCABAŞ v. SWITZERLAND
 
(Application no. 29086/12)
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
10 January 2017
 
 
 
 
FINAL
 
10/04/2017
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Osmanoğlu and Kocabaş v. Switzerland,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Luis López Guerra, President,
 Helena Jäderblom,
 Helen Keller,
 Branko Lubarda,
 Pere Pastor Vilanova,
 Alena Poláčková,
 Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 6 December 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 29086/12) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Swiss nationals, Mr Aziz Osmanoğlu (the first applicant) and Ms Sehabat Kocabaş (“the second applicant”), both of whom were also Turkish nationals, on 23 April 2012. 2. The applicants were represented by Ms S. Sutter‑Jeker, a lawyer practising in Basle. The Swiss Government (“the Government”) were represented by their Agent, Mr Frank Schürmann. 3. The applicants alleged that the obligation to send their minor daughters to mixed swimming lessons was contrary to their religious convictions. 4. On 18 September 2013 the application was communicated to the Government. 5. The Turkish Government did not exercise their right to intervene in the present case (Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The background to the case
6. The applicants were born in 1976 and 1978 respectively and live in Basle. 7. The first applicant, who was born in Turkey, moved to Switzerland at the age of 10. On completing a business-studies course in Basle, he returned temporarily to Turkey to attend classes in Islamic studies; while there, he met the second applicant, who became his wife. She moved to Switzerland in 1999 under the provisions for family reunion. When the present application was lodged she was on a training course to become a playgroup leader (Spielgruppenleiterin). The first applicant speaks fluent Swiss German. 8. Three daughters were born to the applicants, on 8 July 1999, 22 June 2001 and 7 July 2006 respectively. The present application concerns only the first two daughters. They were initially enrolled in the Vogelsang primary school in Basle. The eldest daughter subsequently attended an “orientation school” (Orientierungsschule, between the primary and secondary levels). 9. Swimming lessons are part of the compulsory school curriculum; under the applicable legislation in the canton of Basle Urban, pupils cannot be exempted until they reach puberty (see paragraph 27 below). This fact was brought to the applicants’ attention on 11 August 2008 through a recommendation entitled “Guidelines on dealing with religious matters in schools” (see paragraph 27 below). The applicants, who are devout Muslims, refused to send their daughters to the swimming lessons on the grounds that their beliefs prohibited them from allowing their children to take part in mixed swimming lessons. They stated that although the Koran did not instruct women to cover their bodies until puberty, their beliefs required them to prepare their daughters for the precepts that would be applied to them from that point onwards. As the holders of parental responsibility for their daughters, the applicants alleged that there been a violation of their own rights. 10. By a letter of 13 August 2008, the Public Education Department of the Canton of Basle Urban (Erziehungsdepartement des Kantons Basel-Stadt) advised the applicants that under section 91 (9) of the Education Act of the Canton of Basle Urban (see paragraph 24 below), they were liable to a maximum fine of 1,000 Swiss francs (CHF) (around 923 euros (EUR)) each if their daughters did not comply with the obligation to attend school. 11. On 30 March 2010 the head teacher of the school held a meeting with the applicants in order to resolve the situation. The applicants continued to refuse to send their daughters to the swimming lessons. By letters of 30 March and 4 May 2010, the applicants were again invited to send their daughters to the swimming lessons. In spite of these attempts by the school, the applicants’ daughters continued to be absent from the swimming lessons. 12. On 4 May and 14 June 2010 the school authorities asked the Head of the Public Education Department to open fixed-penalty proceedings against the applicants. On 17 June 2010 the applicants were invited to comment again as part of those proceedings. 13. By a letter of 28 July 2010, the education authorities ordered the applicants to pay a fine of CHF 350 (about EUR 323) per parent and per child (a total of CHF 1,400 CHF – about EUR 1,292) for acting in breach of their parental duties (see section 91 (8) and (9) of the Education Act of the Canton of Basle Urban, paragraph 24 below). 14. An appeal by the applicants against that decision was dismissed by the Court of Appeal of the Canton of Basle Urban (Appellationsgericht des Kantons Basel-Stadt) on 30 May 2011. B. The Federal Supreme Court’s judgment of 7 March 2012
15. Drawing on its leading decision of 24 October 2008 (see Federal Supreme Court judgment 135 I 79; paragraph 29 below), the Federal Supreme Court, by a judgment of 7 March 2012, dismissed an appeal by the applicants, holding that the authorities’ refusal to exempt their daughters from mixed swimming lessons in primary school had not breached the applicants’ right to freedom of conscience and belief. 16. It accepted that this refusal represented a breach of freedom of religion. Nonetheless, it considered that the swimming lessons formed part of the compulsory school curriculum in the Canton of Basle Urban and that this obligation had a sufficiently solid legal basis. It cited, firstly, section 22 of the Education Act of the Canton of Basle Urban, which stated that gymnastics was one of the compulsory lessons in primary school, and section 139 of the same Act, stating that at least three hours of the pupils’ weekly timetable was to be spent in physical education. It also held that, under section 17 of the Act, boys and girls at primary-school level were, in principle, to attend classes together. It further stated that, in accordance with section 68 of the Act, the precise organisation of this subject, especially the various lessons and the number of hours allocated to them, was set out in the curriculum, point 9.2.4 of which provided that swimming formed part of compulsory gymnastics and sports lessons. 17. The Federal Supreme Court then pointed out that pupils could be exempted from lessons or from certain subjects, and any such decision was to be taken by the school authorities at the request of teachers or of persons responsible for the children’s education (section 66 (5) and (6) of the Education Act; see paragraph 24 below). It noted that detailed information on exemptions was set out in point 34 of the School Regulations (Schulordnung) of the Canton of Basle Urban, and that the arrangements for dealing with religious issues in schools were included in a Recommendation (Handreichung) that had been issued by the Education Department of the Canton of Basle Urban in September 2007. It added that, under point 5.1 of that recommendation, exemption from swimming classes could only be granted to pupils who had reached the age of puberty. It also indicated that from the sixth year of school (that is, generally when pupils had reached the age of twelve), girls and boys attended physical education and swimming lessons separately (point 5.3 of the recommendation). 18. The Federal Supreme Court further held that the applicants’ argument that the recommendation had no legal validity was irrelevant in this case, in so far as, in its view, the recommendation was in any event merely a tool to assist in balancing the competing interests involved in reaching a decision on an exemption request. It also considered the fact that swimming was not taught in all the canton’s schools and that ice-skating, which also appeared as a lesson in the curriculum, was not taught at all in practice, to be irrelevant in assessing the legal basis. The Federal Supreme Court accordingly concluded that the measure had a valid legal basis. 19. As to the public interest and the proportionality of the interference, the Federal Supreme Court upheld the lower court’s judgment to the effect that it was of paramount importance to ensure that children were integrated, irrespective of their origin, culture or religion. It further considered that the interference was lessened by the fact that the swimming lessons were mixed only until the age of puberty, and that the impact of the measure was attenuated by the accompanying measures (separate changing rooms and showers, and the option of wearing a burkini). 20. The Federal Supreme Court also found irrelevant the applicants’ argument that their children were receiving private swimming lessons, holding that what was at stake for the children was not simply learning to swim, but also submitting to the conditions surrounding the teaching itself (äussere Bedingungen des Unterrichts). It held that the school’s function of social integration, valid in respect of all pupils, required that exemptions for swimming classes be granted only sparingly. The refusal to grant an exemption in the present case thus corresponded to its new practice, according to which educational obligations were, in principle, to be recognised as prevailing over compliance with the religious precepts (religiöse Gebote) of one part of the population. For that reason, the comparison with exemptions granted for medical reasons was also irrelevant. 21. Having regard to the foregoing factors, the Federal Supreme Court concluded that the refusal to grant an exemption from the mixed swimming classes had not breached the applicants’ right to freedom of religion. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
22. The relevant provisions of the Federal Constitution read as follows:
Article 15 – Freedom of conscience and belief
“1. Freedom of conscience and belief is guaranteed. 2. Every person has the right to choose freely their religion or their philosophical convictions, and to profess them alone or in community with others. 3. Every person has the right to join or to belong to a religious community, and to follow religious teachings. 4. No one may be forced to join or belong to a religious community, to participate in a religious act, or to follow religious teachings.”
Article 36 – Restriction of fundamental rights
“1. Restrictions on fundamental rights must have a legal basis. Significant restrictions must have their basis in a federal act. The foregoing does not apply in cases of serious and immediate danger where no other course of action is possible. 2. Restrictions on fundamental rights must be justified in the public interest or for the protection of the fundamental rights of others. 3. Any restrictions on fundamental rights must be proportionate. 4. The essence of fundamental rights is sacrosanct.”
Article 62 – State education
“The Cantons are responsible for the system of State education. The Cantons shall ensure the provision of an adequate basic education that is available to all children. Basic education is compulsory and is managed or supervised by the State. In State schools it is free of charge.
...”
23. Article 303 of the Civil Code of 10 December 1907, pertaining to the religious education of children, is worded as follows:
Article 303 – Religious education
“The father and mother shall decide on the child’s religious education. Any agreement which would restrict their freedom in this respect shall be invalid. On reaching the age of 16, the child shall have the right to choose his or her own faith.”
24. The provisions of the Education Act of the Canton of Basle Urban of 4 April 1929, in the version of 10 August 2009, were worded as follows at the relevant time (translation by the Court):
Section 17
“Primary school shall last for four academic years. As a general rule, boys and girls shall be educated together.”
Section 22
“The compulsory lessons in primary school shall be: languages, reading, mathematics, history of cultural heritage, writing, drawing, gymnastics (Turnen) ...”
Section 66
“1. All pupils shall attend the compulsory lessons. 2. An exemption from lessons or from certain subjects may only be granted subject to compliance with certain conditions for which specific regulations have been issued.[1]”
Section 91
“... 8. The obligations of persons responsible for children are defined as follows:
(a)  [Persons responsible for children] are obliged to ensure that their children attend compulsory and optional lessons on a regular basis and that they receive sufficient rest;
(b)  they must not deliberately keep their children away from school;
(c)  they shall take part in information meetings for parents and in meetings with teachers, organised by a member of the teaching staff or by the school authorities;
(d)  they shall instruct their children to comply with all of the school rules and instructions. 9. Persons who repeatedly fail to comply with the obligations listed in sub-section 8 are liable, at the request of the school authorities, to a fine of up to 1,000 [Swiss] francs. ...”
Section 139[2]
“At least three hours per week shall be devoted to exercise and physical education as part of the curriculum.”
25. Regulations 34 et seq. of the Schools Regulations (Schulordnung)[3] of the Canton of Basle Urban governed the conditions and procedure applicable to a request for exemption from certain lessons (translation by the Court):
Regulation 34
“The school authorities shall decide whether or not to grant an exemption from certain lessons. With a view to duly informing themselves, they shall be entitled to request supporting documents.”
Regulation 35
“Exemptions shall be granted for a specific period, which shall not exceed the duration of the semester already started. A new request shall be required for each application for an extension.”
26. Point 9.2.4 of the curriculum of the Canton of Basle Urban drawn up by the Education Board (Erziehungsrat) and approved by the cantonal council provides that swimming is part of the compulsory gymnastics and physical education classes; point 9.2.5 provides that ice-skating forms part of this school subject. 27. A recommendation (Handreichung) from the Education Department of the Canton of Basle Urban of September 2007, entitled Merkblatt zum Umgang mit religiösen Fragen an der Schule (Guidelines on dealing with religious matters in schools), specifies the arrangements for taking account of religious matters in schools. Under point 5.1 of this recommendation, exemptions from swimming lessons can only be granted to pupils who have reached the age of puberty. From the sixth year, teaching of physical education and swimming is in any event conducted separately for girls and boys (point 5.3). In addition, the recommendation states that, in order to take account of Islam’s perception of morality, pupils have to have the possibility of covering their bodies if their parents so wish, to be able to get changed separately from the other pupils in the class, to be able to take a shower privately or only with pupils of the same sex and, in so far as possible, to be taught by teachers of the same sex (point 5.3). This recommendation is regularly updated and is available on the internet. B. Relevant domestic practice
28. In 1993 the Federal Supreme Court considered, for the first time, the question of an exemption from swimming lessons on religious grounds at primary-school level (119 Ia 178). It held that, in the light of the principle of proportionality, providing children with education that was in line with their parents’ religious beliefs prevailed in the relevant case over the compulsory nature of the swimming lessons. The pupil’s interests were to prevail in relation to his or her parents’ religious interests only where the child’s best interests were tangibly and seriously compromised by strict adherence to the religious rules, for example if the child’s health was in danger or if equality of opportunity – including that between men and women – was at stake. According to the Federal Supreme Court, however, such values were not called into question in the case under consideration, since the swimming lessons represented only a small part of the sports education and, accordingly, the school’s educational task was not seriously jeopardised by an individual exemption from swimming classes. In other words, the court held that even if the applicant did not learn to swim, her chances of completing her school career or succeeding in her professional life were not seriously threatened. The Federal Supreme Court also noted that the curriculum in the Canton of Zurich did not oblige municipalities to offer swimming as a compulsory lesson, but merely recommended it. It noted that it could not be ruled out that there were primary schools in that canton in which swimming was not taught. Moreover, the court saw no reason to doubt the veracity of the applicants’ allegation that their daughters were receiving private swimming lessons. The Federal Supreme Court further considered that a large number of exemption requests, management of which would involve an additional workload or organisational problems for schools, were not to be expected. Lastly, with regard to the lower court’s argument that foreign pupils ought to adapt to the conditions and traditions of the host country, the Federal Supreme Court considered that foreign nationals were admittedly required to comply with Swiss laws, but that there was no duty on them, in the sense of a binding rule, to adapt all their customs and ways of life to local practices. In other words, according to the Federal Supreme Court, a legal rule imposing on pupils of foreign origin a disproportionate restriction on their ideas and their religious and cultural convictions could not be derived from the principle of integration. 29. Fifteen years later, on 24 October 2008, the Federal Supreme Court amended its case-law, having regard to the sharp increase in Switzerland’s Muslim population. In a leading judgment (ATF 135 I 79), it stated that the interest in ensuring integration and compliance with the values of the local culture ought to be given greater weight. It noted the existence of an important public interest in all pupils being able to take swimming classes, on the grounds of socialisation, child safety and equal opportunities for girls and boys. In consequence, it considered that the refusal to grant an exemption from swimming lessons had been justified and therefore compatible with the obligations arising under the Convention. 30. The Federal Supreme Court has since confirmed this new case-law. One of the relevant cases (Federal Supreme Court judgment of 7 March 2012, 2C_666/2011) concerned the decision which is the subject-matter of the present application before the Court. In another case (judgment of 11 April 2013, 2C_1079/2012), the Federal Supreme Court was required to examine, for the first time, a request for exemption from compulsory swimming lessons in respect of a pupil, aged 14, who had reached puberty. The Federal Supreme Court dismissed the application. The girl, a Shiite, argued, inter alia, that, firstly, the lessons in question were conducted by a male teacher and, secondly, men could see her through the windows of the swimming pool. The Federal Supreme Court held that the girl’s private interest had to yield to the public interest in an all-round education for all pupils, whatever their religion. Furthermore, the interference with her freedom of religion struck the Federal Supreme Court as less significant in that case, given that girls and boys attended separate swimming lessons and the girl in question was able to change and take a shower separately from other pupils, and was allowed to wear a burkini. III. PRACTICE IN OTHER MEMBER STATES OF THE COUNCIL OF EUROPE
31. In a judgment of 29 October 2012, the Constitutional Court (Staatsgerichtshof) of Liechtenstein allowed an application by parents who were members of the Palmarian Church (Palmarianische Kirche) and complained of a violation of their right to freedom of religion on account of a refusal by the lower courts to exempt their three children (two girls and a boy) from compulsory swimming lessons. The Constitutional Court drew a distinction between the case and, in particular, the leading judgment delivered by the Federal Supreme Court on 24 October 2008 (see paragraph 29 above), in that, since the exemption in question had not been requested by Muslim parents, the public interest in ensuring integration of foreign pupils in Swiss society was absent. The Constitutional Court further held that the threat of excommunication by the Palmarian Church – an argument put forward by the applicants – was serious and had to be taken into consideration. Bearing in mind the specific features of the case and in the light of the children’s best interests, it upheld the parents’ complaint and remitted the case to the lower court. 32. In a judgment of 11 September 2013, the German Federal Administrative Court (Bundesverwaltungsgericht) refused a request to reopen proceedings (Revisionsgesuch) submitted by a Muslim pupil who, at the age of 11, had been refused an exemption from mixed swimming lessons in the Frankfurt Gymnasium (secondary school), attended by a high proportion of Muslim pupils. The Federal Administrative Court concluded that the plaintiff had not shown how the dress codes of her religion would be called into question by the wearing of a burkini, which had been authorised by the school authorities. It set aside the plaintiff’s objection that the burkini did not hide the outline of her body. It also held that the school was not obliged to exclude from its curriculum practices which were encountered and tolerated in society outside the school, for the sole reason that they were unacceptable to certain individuals in the light of their personal religious views. With regard to the plaintiff’s argument that there was a risk that she would be accidentally touched by boys during the swimming lessons, the Federal Administrative Court considered that this risk could be significantly reduced through careful planning of lessons by the teacher and through precautions taken by the plaintiff herself. It further emphasised that one of the central tasks of schools was their role in facilitating integration, including, in the Federal Administrative Court’s view, a duty to encourage children to encounter and accept the religious and cultural mores, opinions and ideas held by others, which did not necessarily correspond to their own beliefs. According to the information available to the Court, this case was pending before the German Constitutional Court at the time of adoption of the present judgment (6 December 2016). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
33. Relying on Article 9 of the Convention, the applicants alleged that the requirement to send their daughters to mixed swimming lessons was contrary to their religious convictions. They submitted that the fine imposed on them by the Public Education Department of the Canton of Basle Urban following the refusal to exempt their daughters from swimming lessons lacked a valid legal basis, pursued no legitimate aim and was disproportionate. In consequence, they considered that they were victims of a violation of their right to freedom of religion within the meaning of Article 9 of the Convention. That provision reads as follows:
 
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and 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. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
34. The Government contested the applicants’ arguments. A. Admissibility
35. The right of parents to have upheld their right “to ensure the education and teaching of their children in conformity with their own religious and philosophical convictions” is guaranteed by the second sentence of Article 2 of Protocol No. 1, which is in principle the lex specialis in relation to Article 9 of the Convention (see Folgerø and Others v. Norway [GC], no. 15472/02, § 84, ECHR 2007-VIII, and Lautsi and Others v. Italy [GC], no. 30214/06, § 59, ECHR 2011). As Switzerland has not ratified Protocol No. 1, the applicants rely on Article 9 of the Convention. The Court, noting that the Government have not contested the application of Article 9 of the Convention to the present case, considers that the situation complained of by the applicants falls within the scope of that provision. 36. The Court also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. Whether there was an interference
37. The applicants considered that the requirement to send their daughters to mixed swimming lessons amounted to an interference with their rights protected by Article 9 of the Convention. 38. The Government did not dispute that the refusal to exempt the applicants’ daughters from mixed swimming lessons as part of compulsory primary-school education and the fines imposed on the applicants amounted to an interference with the latter’s right to freedom of religion within the meaning of Article 9 of the Convention. 39. In the Government’s view, however, it was clear that only the manifestation of religious beliefs was affected in the present case, in so far as the contested decisions concerned solely their obligation to send their daughters to the swimming lessons and, accordingly, the education that the applicants wished to give their daughters with regard to modesty in the light of their strict interpretation of the precepts of Islam. They considered that the applicants’ faith and their decision to follow a strict movement within Islam had not been called into question. 40. The Court notes that the applicants complained of an interference with their right to freedom of religion, relying on Article 9 of the Convention, without adducing any evidence. In particular, they criticised the authorities for having refused their request to exempt their daughters from compulsory mixed swimming lessons in primary school and for having imposed a fine in that connection. 41. In order to count as a “manifestation” within the meaning of Article 9, the act inspired, motivated or influenced by a belief must be intimately linked to the religion or that belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question (see Eweida and Others v. the United Kingdom, nos. 48420/10, 59842/10, 51671/10 and 36516/10, § 82, ECHR 2013 (extracts)). 42. The applicants alleged that their beliefs prohibited them from permitting their children to take part in mixed swimming lessons. They added that, although the Koran laid down the precept that the female body was to be covered only from puberty, their faith instructed them to prepare their daughters for the precepts that would be applied to them from puberty onwards. The Court considers that the case concerns a situation in which the applicants’ right to manifest their religion is in issue. The applicants exercised parental authority and could decide, under Article 303 al. 1 of the Civil Code (see paragraph 23 above), on the religious education of their children. In consequence, they are entitled to rely on this aspect of Article 9 of the Convention. The Court considers, furthermore, that the applicants indeed suffered an interference with the exercise of their right to freedom of religion as protected by that provision. 2. Whether the interference was justified
(a)  The legal basis
i. The parties’ submissions
(α)  The applicants
43. The applicants conceded that the teaching of gymnastics and sport was compulsory on the basis of Article 68 § 3 of the Constitution, taken together with section 2 (2) of the Federal Act encouraging gymnastics and sports, in all compulsory schools. They added that sports education in Switzerland was not defined by federal legislation and that it was therefore the cantonal law which was to be applied. 44. The applicants further observed that, at the cantonal level, point 9.2.4 of the primary-school curriculum for the Canton of Basle Urban included swimming, and point 9.2.5 included ice-skating. According to the applicants, however, ice-skating was not taught at all in practice. Thus, again according to the applicants, it could not be claimed on the basis of this curriculum that swimming classes formed part of the compulsory teaching of gymnastics and sport. They added that, furthermore, not all schools in the Canton of Basle Urban offered swimming lessons. 45. The applicants also indicated that in August 2008 they had been given the Recommendation entitled “Guidelines on dealing with religious matters in schools”, drawn up by the Education Department. They did not consider that Recommendation as a sufficient legal basis, on the grounds that it did not even have the status of a simple regulation in Swiss law. Accordingly, they concluded that no obligation to take part in swimming lessons could be drawn from the domestic law. (β)  The Government
46. As regards the justification for the interference within the meaning of Article 9 § 2 of the Convention, the Government indicated firstly that, under Article 62 § 2 of the Constitution, basic teaching was compulsory (see paragraph 22 above). They further indicated that, pursuant to section 22 of the Education Act of the Canton of Basle Urban of 4 April 1929 (see paragraph 24 above), gymnastics was one of the compulsory lessons; pursuant to section 139 (1) of that Act, the timetable had to include at least three hours of physical education per week; and, under section 17 of the Act, as a general rule boys and girls attended primary-school lessons together. Lastly, they indicated that the curriculum of the Canton of Basle Urban, which had been drawn up by the Education Board (Erziehungsrat) and approved by the cantonal council, and was available on the internet, provided in point 9.2.4 that swimming was part of the compulsory teaching of gymnastics and sport. 47. The Government further argued that, under section 66 (1) of the Education Act (see paragraph 24 above), pupils were required to attend the lessons given in all the compulsory subjects, but that an exemption could be granted by the school authorities at the request of teachers or of the persons responsible for children’s education (see section 66 (5) and (6)). They specified that the conditions for obtaining an exemption and the applicable procedure were set out in Regulations 34 et seq. of the Schools Regulations for the Canton of Basle Urban (see paragraph 25 above). They also stated that guidelines for dealing with religious issues in schools had been set out in a recommendation from the Education Department of the Canton of Basle Urban of September 2007, which was updated regularly and was available on the internet. Point 5.1 of this Recommendation confirmed that swimming lessons were compulsory and that exemptions from those lessons could only be granted to pupils who had reached puberty, that is, who were aged at least 12. From the sixth year, that is, at the approach of puberty, boys and girls were taught sports and swimming separately (point 5.3 of the Recommendation). The Recommendation further provided that, in order to take account of Islam’s perception of morality, pupils had to be given the option of covering their bodies to the extent desired by their parents, to be able to get dressed out of sight of the rest of the class, and to take a shower separately or only with members of their own sex, and that, in so far as possible, they were to be taught by teachers of the same sex (point 5.3 of the Recommendation). 48. The Government further submitted that, under section 91 (8) (b) of the Education Act, persons responsible for children’s education were not entitled to allow them to stay away from school deliberately (see paragraph 24 above). Under section 91 (9), a fine of up to CHF 1,000 could be imposed at the request of the school authorities in the event of repeated breaches of the obligations set out in section 91 § 8. 49. For all these reasons, and reiterating that the texts referred to were published and available on the internet in their entirety, the Government submitted that the interference experienced by the applicants had had a sufficient legal basis for the purposes of Article 9 § 2 of the Convention.

Outcome for Article 9: no_violation