The bachelor thesis examines the protection of religious freedom in Sweden and France, with a main point on the right to wear religious symbols and clothing. The subject is processed in relation to the Member States obligations in accordance with the freedom of religion, provided for in Article 9 of the European Convention for the Protection of Human Rights. The right to wear religious symbols and attire has a broad meaning, and in this thesis special focus is placed on the right to wear a religious veil, as the Swedish legal situation is in stark contrast to the French law's restrictive view on the subject. In order to answer the thesis main question, a legal-judicial and comparative law approach is applied. Legislation that has been dealt with in its entirety, is the second chapter in the Swedish regeringsformen (1974:152), the European Convention, the French principle of laïcité, the French Education Act (Article L141-5-1 du Code de l’éducation), the French law on the prohibition of veils in public environments (Loi n° 2010-1192  du 11 octobre 2010 interdisant la dissimulation du visage dans l'espace public) and the French Constitution (Constitution of October 4, 1958). Finally, the authors orientation in the research questions of the essay has been emphasized, and a remark about the French legislation has been made.

Public liability regarding violations of the European Convention on HumanRights (ECHR) in Sweden is a given fact; member states, including Sweden, responsiblefor such violations are liable to compensate the individuals whoserights have been violated. Since 2014, a right to compensation for certain stateviolations of the second chapter – the human rights chapter – in the Instrumentof Government (1974:152), one of Sweden’s constitutional laws, has been establishedin case law. In 2020, a Swedish Government Official Report was published,which examined whether a basis for compensation should be establishedin the Tort Liability Act (1972:207) for violations in general of the second chapterof the Instrument of Government. The parliamentary committee investigatingthe matter concluded that such a basis should be established as it wouldstrengthen legal certainty and increase the state’s accountability for violations ofhuman rights stated within the constitution. However, as the inquiry was limitedto the second chapter of the Instrument of Government, the question of thestate’s liability concerning violations of other chapters in the Instrument of Governmentremains unanswered.This thesis examines the state’s liability in violations of certain articles in thefirst chapter of the Instrument of Government from a public law perspective,using a legal doctrinal method. Accountability in this thesis is not limited to tortsand therefore include other ways to attain non-pecuniary reparation, as torts isthe last resort for individuals in terms of effective remedies. To examine suchaccountability, the thesis firstly surveys the evolution of public liability in violationsof the second chapter of the Instrument of Government, which is basedon obligations following the ECHR. Secondly, application of Articles 1, 2 and 9in the first chapter of the Instrument of Government is accounted for. Thirdly,the relation between principles and rights within the first chapter of the Instrumentof Government and the ECHR is examined.The findings within the three parts are thereafter brought together to determinehow public liability in violations of the first chapter of the Instrument ofGovernment works, concluding that accountability relating to that of the secondchapter of the Instrument of Government might be enforceable although thelack of case law and practice in general makes the prospect too uncertain for legalrepresentatives to strive for. Hence, leading to the final conclusion that the matterneeds to be inquired upon to a more extensive level – preferably in the formof a dissertation or as a Swedish Government Official Report.

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The European court of Justice (ECJ) has the stance that EU-law, within the confines of EU competence, has primacy over national law, regardless of its source, even if it’s the national constitutions.  Although generally the ECJ:s  stance is accepted, sometimes it is instead the EU that has had to indirectly (through inaction) accept the conclusions of the national constitutional courts. When this happens, it can however only be noticed as the EU commission’s decision to not start infringement proceedings against the member state, and as such it appears as a legal vacuum or absence of enforced law. Inside this vacuum there is lacking enforcement of EU-law, which the member states can use as a de facto exemption from EU-law to regain or uphold national sovereignty. Thus the member states can fill the vacuum by deciding cases on the basis of their own constitutional law rather than (the unenforced) EU-law. It appears to be an in EU-law unregulated transfer of sovereignty.  This paper intends to shed light on possible problems that arise in this situation due to the lack of legality and certainty that ensues from these exemptions from EU-law being upheld through the inaction of the commission rather than positive legal regulation. I will also attempt to find a coherent model for the explanation of this seemingly contradictory situation, describing it as a “sovereignty-vacuum”, an opposing but related concept to the “exemption” of Carl Schmitt.  Through use of Schmitt’s political theology, I attempt to find a solution to the problem of legality with an analogy to the concept of “mercy” and “forgiveness” in the context of constitutional law. Ultimately, I propose a solution de lege ferenda that these implicit exemptions from EU-law be written down as explicit exemptions.