European network of legal experts in the non-discrimination field NEWS REPORT Date: Expert: Title: Country: Context Issue at stake: Ground of discrimination: Source: Field: Legislative provisions: 26 March 2014 Patricia Hornich Discrimination on the ground of religion against children regarding swimming classes in school Liechtenstein The Administration Court’s ruling regarding a family’s claim of violation of their right to freedom of religion based on their right to religious liberty as stated in the Constitution of the Principality of Liechtenstein and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Religion National jurisdiction Education Constitution of the Principality of Liechtenstein Act on Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Content Case: A private individual (family with four school aged children) claimed that their right to freedom of religion had been violated by the law (Art. 37 of the CCC1 and Art. 9 ECHR2). The parents had appealed for their children to be excused from swimming classes in school for religious reasons, based on the argumentation that the family is a member of the Christian Palmarian church of the Carmelites of the Holy Face. The dispensation application was declined by the Ministry of Education as of 17. December 2009 with the argumentation (RA 2011/2986-4292) that the attendance of the swimming classes based on the official school education plan is reasonable by wearing full length bathing clothing and using separate changing rooms and therefore no conflict with the religious rules is given. The applicant challenged the decision of the Ministry of Education. A long courtprocedure started with the following main turns: · Liechtenstein government, 13/14 December 2011 justified the rejection of the applicant’s complaint 1 Verfassung des Fürstentums Liechtenstein vom 5. Oktober 1921 (LV), LGBl. 192, no. 15, http://www.llv.li/verfassung-e-01-02-09.doc.pdf. 2 Konvention vom 4. November 1950 zum Schutze der Menschenrechte und Grundfreiheiten, 8. September 1982, LGBl. 1982, no. 60/1. 1 European network of legal experts in the non-discrimination field · · Administration Court’s (Verwaltungsgerichtshof) ruling as of 5 July 2012 (VGH 2011/150) confirmed the rejection by the government following the same argumentation. Constitutional Court (Staatsgerichtshof) decided as of 9 August 2012 to set aside the judgment of the Administration Court as the applicant’s rights regarding religious liberty as stated in the Constitution of the Principality of Liechtenstein and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) are violated. The main legal arguments are: o The obligation based on the school education plan of attendance at the swimming classes is a high burden for the applicant due to their religious duties. o The argumentation of the applicant, that in the case of an attendance at the swimming classes an excommunication may result, is valid and given. o The conflict between the attendance in school classes and the membership of a religious community has to be considered with the judgement that the purpose of attendance in swimming classes cannot be seen in a reasonable proportion to the given right of religious liberty. Decision of the Court: On 21 February 2014 the Administration Court combined the previous legal procedures and judged in a non-public session as follows: · · · The judgement of the Constitutional Court lays down the conflict of the two legally grounded rights (right of school education and right of religious liberty) but makes also clear that in the given case an enforced participation of the applicant at school swimming classes results in a mental stress and a psychological dilemma, which must objectively be of higher importance than the school education plan’s goal. Based on the absoluteness of the applicant’s religious beliefs it can be assumed that there will be no different situation given within the coming years. Therefore an annual new application of dispensation is of no relevance. The judgement of the Liechtenstein Government (29 October 2013) and of the Ministry of Education (19 June 2013) is amended in the sense that the applicants receive the dispensation from school swimming classes. Address of the webpage: The Administration Court’s ruling can be retrieved using this link (in German): http://www.gerichtsentscheide.li/default.aspx? mode=gerichte&prim=3&value=2014&id=4042&backurl=?mode=gerichte %26prim=3%26value=2014 2