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GRAND CHAMBER
CASE OF FOLGERØ AND OTHERS v. NORWAY
(Application no. 15472/02)
JUDGMENT
STRASBOURG
29 June 2007
This judgment is final but may be subject to editorial revision.
In the case of Folgerø and Others v. Norway,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr J.-P. Costa, President,
Mr L. Wildhaber,
Mr C.L. Rozakis,
Mr B.M. Zupančič,
Mr P.
Lorenzen,
Mrs F. Tulkens,
Mr C. Bîrsan,
Mrs N.
Vajić,
Mrs M. Tsatsa-Nikolovska,
Mr A. Kovler,
Mr V.
Zagrebelsky,
Mrs E. Steiner,
Mr J. Borrego Borrego,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mrs I.
Ziemele, judges,
and Mr V. Berger, jurisconsult,
Having deliberated in private on 6 December 2006 and on 9 May 2007,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
There appeared before the Court:
(a) for the Government
Ms T. Steen, Attorney, Attorney-General's Office
(Civil
Matters), Agent,
Ms E. Holmedal, Attorney,
Attorney-General's Office
(Civil Matters),
Mr G. Mandt, Director, Ministry of Education and Research,
Mr B. Gjefsen, Senior Adviser, Ministry of Education and
Research, Advisers;
Mr L. Stavrum, Advokat, Counsel,
Mr K. Rognlien, Advokat,
Mrs B. Sandvig,
Mrs T. Nikolaisen, Advisers.
The Court heard addresses by Mr Stavrum and Ms Steen.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
In its subsequent decision on admissibility of 14 February 2006 the Court held that, in its examination of the issue regarding full exemption, the above limitations on the scope of the case that followed from the decision of 26 October 2004 did not prevent it from considering the general aspects of the partial exemption arrangement, notably in the context of the parents' complaint under Article 14 of the Convention.
A. Factual background to the present case
“Everyone residing in the Kingdom shall enjoy freedom of religion.
The Evangelical Lutheran Religion remains the State's official religion. Residents who subscribe to it are obliged to educate their children likewise.”
1. The former Compulsory School Act 1969
“Primary school shall, with the understanding and co-operation of the home, assist in giving pupils a Christian and moral education and in developing their abilities, spiritual as well as physical, and giving them good general knowledge so that they can become useful and independent human beings at home and in society.
School shall promote spiritual freedom and tolerance, and place emphasis on creating good conditions for co-operation between teachers and pupils and between the school and the home.”
2. Reform
“No pupil should feel that being exempted is unpleasant or stigmatising;
No pupil should be pressurised to stand out as a representative of a specific philosophy of life and the school should therefore display great caution in class or at the school in its handling of a request for exemption;
It should not be automatic for certain pupils to be exempted from certain parts of the syllabus;
If the circumstances lend themselves to it and the parents/pupil so wish, the background and reasons for an exemption can be taken up in the lessons.
An exemption does not mean a freedom to be ignorant...”
“The majority would also underline that the teaching should not be value neutral. The aim that the teaching should not be preaching should never be interpreted to mean that it should occur in a religious/ethical vacuum. All teaching and education in our primary schools shall take the school's object clause as a starting point and, within this subject, Christianity, other religions and philosophy shall be presented according to their own special features. The subject should place emphasis on the teaching of Christianity.”
“The object clause of the Primary School Act, whether taken alone or together with Article 2 of the Constitution and other special rules on the Church and schools, does not provide a basis for establishing that the teaching of Christianity under the new syllabus will of legal necessity become preaching, educative or influential in favour of the Evangelical Lutheran Religion. The legislature may choose to make provision for education in the form of preaching to pupils who are of this creed, but not to others. That would be inconsistent with our international obligations and Article 110c of the Constitution on the protection of human rights.
What emerges, from a legal point of view, from the somewhat unclear concept of 'confessional basis', is that a natural consequence of the State Church system is that the legislator lets instruction in religion or philosophy include the Evangelical Lutheran thoughts, not other forms of Christianity. The law on the new subject, which includes a part on Christianity, has opted for this. .... The solution has been opted for because the majority of the population in Norway is affiliated to this creed. It is evidently motivated by objective reasons. It cannot be ruled out by human rights treaties, provided that the teaching is otherwise pluralistic, neutral and objective.”
“In the situation as it emerges I find that a general right of exemption would be the safest option. This would mean that international review bodies would not undertake a closer examination of thorny questions that compulsory education raises. However, I cannot say that a partial exemption would violate the conventions, provided that the operation of the system falls within the framework of the relevant treaty obligations. A lot would depend on the further legislative process and the manner of implementation of the subject.”
“The object of primary and lower secondary education shall be, in agreement and cooperation with the home, to help give pupils a Christian and moral upbringing, to develop their mental and physical abilities, and to give them good general knowledge so that they may become useful and independent human beings at home and in society.”
“Instruction in Christianity, Religion and Philosophy shall
(i) transmit thorough knowledge of the Bible and Christianity in the form of cultural heritage and the Evangelical Lutheran Faith;
(ii) transmit knowledge of other Christian communities;
(iii) transmit knowledge of other world religions and philosophies, and ethical and philosophical subjects;
(iv) promote understanding and respect for Christian and humanist values; and
(v) promote understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions.
Instruction in Christianity, Religion and Philosophy is an ordinary school subject, which should normally bring together all pupils. The subject shall not be taught in a preaching manner.
A person who teaches Christianity, Religion and Philosophy shall take as a starting point the object clause in section 1-2 and should present Christianity, the different religions and philosophy from the standpoint of their particular characteristics. The same pedagogical principles shall apply to the teaching of the different topics.
A pupil shall, on the submission of a written parental note, be granted exemption from those parts of the teaching in the particular school concerned that they, from the point of view of their own religion or philosophy of life, consider as amounting to the practice of another religion or adherence to another philosophy of life. This may concern, inter alia, religious activities within or outside the classroom. In the event of a parental note requesting exemption, the school shall as far as possible seek to find solutions by facilitating differentiated teaching within the school curriculum.”
3. Evaluations of the KRL subject
“In this part of our report we have discussed whether there is accordance between KRL's intentions, principles and exemption schemes on the one hand and its practical implementation in schools nationwide on the other hand, and whether parental rights can be said to be ensured when the teaching and exemption scheme are organised the way they are. The perspective of parental rights, which is central to the project's mandate, has made it necessary to focus especially on the experiences various groups of parents have had with the subject and with the exemption scheme.
All things considered it should be said that the great majority of the parents we have been in contact with, who belong to the Church of Norway, are satisfied with the subject or have no strong opinions about it. However we have found powerful resistance to important aspects of the subject among other groups of parents. The lasting antipathy to the subject from parents belonging to religious/faith minorities means that KRL can hardly be said to integrate and include as intended.
The principal and empirical surveys provide grounds for the following main conclusions:
1) There is broad agreement among parents that it is important to have some common teaching in the subject concerning different religions and beliefs, but there is no agreement about
• what the contents and objectives of the common teaching should be;
• in which year the pupils should be taught about other religions than their own.
2) In practice some of the subject's intentions are ensured at all surveyed schools, but all the fundamental intentions are not ensured at any of them. Deficient implementation of central intentions underlying the subject can be explained by
• tensions in the subject description itself and between the various intentions underlying the subject, making it difficult to implement;
• lack of resources and problems with implementation presuppose changes at schools.
3) The current exemption scheme does not work so that parental rights are ensured in practice. This is due to the following reasons among others:-
• the information schools give about the exemption scheme is in many ways not suited to safeguard the possibility of exemption.;
• the information given about KRL classes is of too general a nature for parents to be able to notify their intention regarding an exemption. For example, information about working methods is hardly ever given. Besides, the lesson plans generally come too late for parents to have a practical opportunity of asking for an exemption;
• schools interpret the exemption regulations too restrictively compared with the clarifications given both by the Parliament and the Ministry. For instance, an exemption is often granted only in respect of those activities which are called “clearly religious activities”. Furthermore several schools report attitudes which give the impression that it is practically impossible to be granted an exemption;
• schools offer very little differentiated teaching to pupils who are to be exempted from parts of the subject, and pupils with an exemption mostly sit passively in the classroom;
• in addition, a number of parents from minority language backgrounds do not have the language competence necessary to exercise their rights even though they would like an exemption. In many cases this causes distrust in school - home relations. A considerable number of parents from minority backgrounds say they want full exemption but will not apply because they are afraid of a conflict with the school that may harm their children;
• the integration of themes and subjects helps KRL become invisible in the timetable so that in practice it is very difficult to ask for an exemption.
4) Changes should be made which still ensure some teaching for the whole class, while ensuring parental rights in practice. This only seems possible under certain conditions.
• Arrangements are made in order to facilitate teaching about the different religions and beliefs and promote dialogue and mutual respect in some tuition for the whole class. Efforts should probably be made to have flexible models that can be adjusted to the special conditions prevailing for lower primary, upper primary and lower secondary levels respectively in different parts of the country and for different groups of pupils;
• Considering the problems we can now see at several schools, it should be possible to provide for full exemption. This would be the safest solution in respect of international conventions and probably also the one that in the long run would be best suited to ensuring support and legitimacy for a subject that is focused on religion and belief.
We have established that the variations we have found in teaching in different parts of the country, at some schools and in different classes, give us reason to ask whether KRL was one or more than one new subject.”
B. Judicial proceedings brought by some of the applicants
“The object clause applies to all teaching in primary and lower secondary school. The provision is a general one, and its scope may be difficult to determine. It may raise questions relating to the conventions' provisions regarding freedom of religion and parental rights, see Judge Møse, page 35 et seq. of Proposition No. 38 (1996-1997) to the Odelsting [the larger division of Parliament. As far as the KRL subject is concerned, the provision must be viewed in conjunction with section 2-4(2), which establishes that this subject is an ordinary school subject for all pupils, and that instruction in the subject shall not involve preaching. The object clause must be interpreted and applied in such a way that it does not conflict with the conventions that have been incorporated pursuant to section 2 (see also section 3) of the Human Rights Act.
As a result of changes and amendments in subject syllabuses and national standard curricula over time, the expression 'Christian and moral upbringing' must be interpreted as meaning that Christian and humanist values are to be viewed in conjunction with each other. Both the Christian and the humanist tradition underscore the importance of truth, human dignity, charity, democracy and human rights. These are values common to almost everyone in Norway, regardless of religion or philosophy of life. The conventions do not require that teaching in schools must be value neutral; see the judgment of the European Court of Human Rights in the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark (judgment of 7 December 1976, Series A no. 23, § 53)
The object clause establishes that all school education shall take place in cooperation and agreement with the home. Any effort by primary and lower secondary school teachers to help give pupils a Christian upbringing can only be made with the parents' consent and in cooperation with the home. Interpreted in this way, the provision is not incompatible with Article 9 of the ECHR and Article 18 § 1 to 3 of the ICCPR regarding freedom of thought, conscience and religion or with Article 2 of Protocol No. 1 to the European Convention and Article 18 §.4 of the ICCPR regarding parents. The reference to the object clause in section 2-4(3), which prescribes that teachers of the KRL subject shall take the Christian object clause of the primary and lower secondary school as their point of departure thus has no independent significance for the issue of whether there is a violation of the conventions.”
“The appellants have emphasized that the Act requires the teaching to give pupils a thorough knowledge of the Bible and of Christianity in the form of cultural heritage and the Evangelical Lutheran Faith, while it merely requires knowledge of other world religions, beliefs and ethical and philosophical topics.
I refer to the fact that it may be inferred from the practice of the European Court of Human Rights that the States Parties themselves decide the scope and content of teaching; see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53, and Valsamis v. Greece, judgment of 18 December 1996, Reports of Judgments and Decisions 1996 VI, p. 2312, § 28. Thus, Article 9 of the ECHR and Article 2 of Protocol No. 1 do not preclude compulsory instruction in the content of various religions and beliefs and in the history of religions and ethics, provided that such instruction is given in an objective, critical and pluralistic manner. In this respect, I refer to my earlier review and summary of the decisions and comments of the convention bodies. The compulsory instruction must cover different religions and beliefs. The greater emphasis placed in section 2-4(1) on knowledge of Christianity than on knowledge of other religions and beliefs is, in my opinion, within the limit of the discretion accorded by the conventions to the States Parties. The requirement that compulsory instruction must be objective, critical and pluralistic cannot be interpreted as meaning that there must be a specific, proportional division of instruction between different religions and different philosophies of life. In the light of the history, culture and traditions of the individual State Party, it must be acceptable for certain religions or beliefs to be more dominant than others.
Indoctrination or other preaching of a specific religion or a specific philosophy of life will be contrary to the European Convention and the ICCPR; see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53, and Valsamis v. Greece, § 28, and point 6 of the comment of the UN Human Rights Committee of 20 July 1993. Accordingly, section 2-4(2) of the Education Act prescribes that instruction in the KRL subject shall not involve preaching.
The appellants, supported, inter alia, by Judge Møse's report, page 29 of Proposition No. 38 (1996-1997) to the Odelsting have argued that instruction that communicates a specific religious view in a way that is liable to influence pupils to adopt a specific faith is also a violation of the convention provisions regarding freedom of religion and parental rights. I agree that such communication might involve a violation. However, the expression 'liable to' may be interpreted in such a way as to give it greater scope than that which it derives from the decisions of the European Court of Human Rights. I shall therefore keep to the criteria that have been developed in the Court's practice. In connection with the introduction of the KRL subject, the traveaux préparatoires shows that the Ministry and the majority of Parliament were extremely concerned to emphasize that the subject was to be an ordinary school subject for all pupils. This has been expressly stated in the wording of the Act; see section 2-4(2), first sentence. The legislator has also stated that the KRL subject shall be a subject designed to provide knowledge; see, for instance, page 6, second column, and page 10 of Proposition No. 38 (1996-1997) to the Odelsting. Section 2-4(3) provides that Christianity, other religions and philosophies of life shall be presented on the basis of their distinctive characteristics. On the other hand, the Parliament's Standing Committee on Education, Research and Church Affairs stated that instruction shall not be value neutral; see page 4 of Recommendation No. 103 (1995-1996) to Parliament. This in itself cannot be contrary to the conventions since, as I have established earlier, neither the ECHR nor the ICCPR is interpreted as meaning that instruction shall be neutral as regards values.”
2-8 of the 1998 Act and the relevant regulation of 28 June 1999, had the same legal status as other regulations. However, he observed, what mattered was that pupils gained understanding in the plurality of convictions and thoughts, and that the teaching did not present one faith as being superior to others. It ought to be acceptable, in the light of a Contracting State's history, culture and traditions, that one or more religions or philosophies of life be given a more prominent place than others.
“Pursuant to section 2-4 of the Education Act, parents must send written notification in order for their child to be exempted from parts of the instruction at the individual school. Even if applications for exemption are most likely to concern parts of the KRL subject, a limited right to exemption applies to all subjects and activities. The Act does not stipulate that grounds must be given for the application. Practice as regards requiring grounds has varied to date.
The State has argued that instruction in primary and lower secondary schools is to a considerable extent divided up into topics that cut across subject boundaries. Insofar as parts of the KRL subject are integrated with other subjects, full exemption from instruction in the KRL subject will not be sufficient. It is also the view of the State that the KRL subject covers many topics which do not give grounds for exemption, pursuant either to the conventions or to section 2-4(4). The exemption system is designed and practised in such a way that the content of the instruction is the decisive factor. In the State's view, therefore, the prohibition against discrimination imposed by conventions cannot apply to requirements regarding the provision of grounds for applications for exemption.
The Ministry has explained the requirement as regards grounds and the guidelines for exemption in two circulars. In Circular F-90-97 dated 10 July 1997, page 5, the Ministry stated:
'When parents request an exemption, written notification to this effect shall be sent to the school. The notification must contain grounds supporting what they perceive to be the practice of another religion or adherence to another philosophy of life in the instruction.
If the parents apply for an exemption from parts of the instruction which they perceive to be the practice of another religion or adherence to another philosophy of life, the pupils shall be granted exemption after the parents have explained what it is they consider to have such an effect in the instruction. Parents whose notification to the school regarding exemption is not upheld are entitled to appeal against the municipal administrative decision to the National Education Office in the county concerned. The appeal shall be sent through the school, which is thereby given the opportunity to reverse its administrative decision.'
The Ministry enlarged on the requirement of grounds in Circular F-03-98 dated 12 January 1998, page 3:
'The Ministry's basic rule is that when parents apply for an exemption from activities that are clearly religious, exemption (partial exemption) shall be granted. In such cases, the parents are not required to give any grounds. In the case of applications for exemption from activities that are not clearly religious, more must be required as regards the parents' grounds. Such cases are not covered by the main rule as to what exemptions may be applied for. Moreover, the travaux préparatoires make provision for an assessment of whether there are reasonable grounds on which to request an exemption. Reference is made to Recommendation No. 95 (1996-1997) to the Lagting [smaller division of Parliament] in which 'The majority is of the opinion that pupils shall be exempted from such parts of the instruction at the individual school as, on the basis of their own religion or own philosophy of life, it is reasonable to perceive as the practice of another religion or adherence to another philosophy of life.' However, account must be taken of the fact that many parents consider issues relating to faith and philosophies of life to lie within the realm of private life. The right to private life is also protected by international conventions.'
The Ministry then reviews examples of areas from which pupils may be exempted and states on page 4:
'The religious and philosophical convictions of parents shall be respected in the entire Curriculum provided by the school. This means that the rules for exemption apply to all compulsory education. In general, the issue that must be assessed by the school is whether the Curriculum in practice is liable to influence pupils to adopt a specific faith or philosophy of life, or may otherwise be perceived as participation in religious activity or adherence to a philosophy of life.
In specific terms, this may, for instance, have significance with regard to dance classes organised as part of Physical Education; dancing with a partner is incompatible with the faith of some persons, while movement to music is acceptable. In the Arts and Handicraft subject, it will be necessary to exercise caution as regards illustrations of God and the prophets; see the discussion of 'Illustrations - ban on images' in the Guide to the KRL subject (p. 22).'
I will add that in connection with the evaluation of the KRL subject, the Ministry emphasized the importance of changing the content, methodology and organisation of the subject to ensure that as many children and young people as possible could participate in the whole subject. The reason the Ministry nevertheless decided to maintain the limited right of exemption was to be certain that the rights of parents and freedom of religion were safeguarded satisfactorily, and that they were exercised in a way that found understanding; see page 51, first column of Report No. 32 (2000-2001) to Parliament.
I note that the right to exemption from all or parts of the compulsory Curriculum in the KRL subject in primary and lower secondary schools will result in a difference between parents in relation to the school system. Parents and pupils who wish to apply for an exemption must follow the Curriculum closely and apply for an exemption when they consider exemption to be necessary in order to safeguard the rights of the child and their own rights. The school initially decides whether to grant an exemption. The question is whether this difference in treatment is in pursuit of a legitimate aim and whether the aim is proportionate to the means employed.
According to the practice of the European Court of Human Rights, as mentioned earlier, Article 2, second sentence, of Protocol No. 1 has been interpreted as meaning that the convictions must attain a certain level of cogency, seriousness, cohesion and importance, see the Court's judgments in Campbell and Cosans v. the United Kingdom (judgment of 25 February 1982, Series A no. 48, p. 16, § 36) and Valsamis v. Greece (judgment of 18 December 1996, Reports of Judgments and Decisions 1996 VI, p. 2312, § 25). The statements in these judgments support the requirement by the States Parties that parents provide somewhat more detailed grounds when the activity from which they are applying for an exemption does not immediately appear to be practice of a specific religion or adherence to a different philosophy of life.
If an applicant must give detailed information about his or her own religion or philosophy of life, however, this may be a violation of Article 8 of the Convention and Article 17 of the ICCPR regarding the right to respect for private life and possibly also Article 9 of the Convention and Article 18 § 1 of the ICCPR regarding freedom of religion. I underscore that differential treatment on the ground of religion and political or other opinions is the core of the prohibition against discrimination.
As I have explained, the basic reason for introducing compulsory lessons in the KRL subject was that the Government and a majority of Parliament considered it to be significant for the communication of a common foundation of knowledge, values and culture in primary and lower secondary school. The importance of an open, inclusive school environment was emphasized. Implementation of compulsory primary and lower secondary education must include a right to notify a desire to exercise the right to exemption, and in any event the application must state in general terms the parts of the Curriculum from which exemption is desired. It is clear to me that the common curriculum in the KRL subject and the requirement of a written application to exercise the right to an exemption are means of pursuing legitimate aims, and that it is not a disproportionate measure to require that parents who wish to apply for an exemption from parts of the subject must follow the Curriculum and give notification when they desire an exemption. I will add that this is contingent on the school authorities taking the necessary steps to enable parents to follow the Curriculum. The common, compulsory Curriculum requires that parents be kept well informed about the KRL subject and the programme and methods of the Curriculum at all times, and if appropriate be informed of other activities with a religious content.
The parties have not gone into detail concerning the specific requirements regarding grounds and the grounds that are given in the various applications for exemption from Curriculum in the KRL subject. I shall therefore confine myself to declaring that there is no ground for assuming that a possible violation of the prohibition against discrimination in this case may have the consequence of invalidating the administrative decisions to deny full exemption from lessons in the KRL subject.”
C. Petition by the parties to the above proceedings, and their children, to the Court and to the United Nations Human Rights Committee
“14.2 The main issue before the Committee is whether the compulsory instruction of the CKREE1 subject in Norwegian schools, with only limited possibility of exemption, violates the authors' right to freedom of thought, conscience and religion under article 18 and more specifically the right of parents to secure the religious and moral education of their children in conformity with their own convictions, pursuant to article 18, paragraph 4. The scope of article 18 covers not only protection of traditional religions, but also philosophies of life, (12) such as those held by the authors. Instruction in religion and ethics may in the Committee's view be in compliance with article 18, if carried out under the terms expressed in the Committee's General Comment No. 22 on article 18: '[A]rticle 18.4 permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way', and 'public education that includes instruction in a particular religion or belief is inconsistent with article 18, paragraph 4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians.' The Committee also recalls its Views in Hartikainen et al. v. Finland, where it concluded that instruction in a religious context should respect the convictions of parents and guardians who do not believe in any religion. It is within this legal context that the Committee will examine the claim.
14.3 Firstly, the Committee will examine the question of whether or not the instruction of the CKREE subject is imparted in a neutral and objective way. On this issue, the Education Act, section 2-4, stipulates that: 'Teaching on the subject shall not involve preaching. Teachers of Christian Knowledge and Religious and Ethical Education shall take as their point of departure the object clause of the primary and lower secondary school laid down in section 1-2, and present Christianity, other religions and philosophies of life on the basis of their distinctive characteristics. Teaching of the different topics shall be founded on the same educational principles". In the object clause in question it is prescribed that the object of primary and lower secondary education shall be 'in agreement and cooperation with the home, to help to give pupils a Christian and moral upbringing'. Some of the travaux préparatoires of the Act referred to above make it clear that the subject gives priority to tenets of Christianity over other religions and philosophies of life. In that context, the Standing Committee on Education concluded, in its majority, that: the tuition was not neutral in value, and that the main emphasis of the subject was instruction on Christianity. The State party acknowledges that the subject has elements that may be perceived as being of a religious nature, these being the activities exemption from which is granted without the parents having to give reasons. Indeed, at least some of the activities in question involve, on their face, not just education in religious knowledge, but the actual practice of a particular religion (see para 9.18). It also transpires from the research results invoked by the authors, and from their personal experience that the subject has elements that are not perceived by them as being imparted in a neutral and objective way. The Committee concludes that the teaching of CKREE cannot be said to meet the requirement of being delivered in a neutral and objective way, unless the system of exemption in fact leads to a situation where the teaching provided to those children and families opting for such exemption will be neutral and objective.
14.4 The second question to be examined thus is whether the partial exemption arrangements and other avenues provide 'for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians.' The Committee notes the authors' contention that the partial exemption arrangements do not satisfy their needs, since teaching of the CKREE subject leans too heavily towards religious instruction, and that partial exemption is impossible to implement in practice. Furthermore, the Committee notes that the Norwegian Education Act provides that 'on the basis of written notification from parents, pupils shall be exempted from attending those parts of the teaching at the individual school that they, on the basis of their own religion or philosophy of life, perceive as being the practice of another religion or adherence to another philosophy of life'.
14.5 The Committee notes that the existing normative framework related to the teaching of the CKREE subject contains internal tensions or even contradictions. On the one hand, the Constitution and the object clause in the Education Act contain a clear preference for Christianity as compared to the role of other religions and worldviews in the educational system. On the other hand, the specific clause on exemptions in Section 2-4 of the Education Act is formulated in a way that in theory appears to give a full right of exemption from any part of the CKREE subject that individual pupils or parents perceive as being the practice of another religion or adherence to another philosophy of life. If this clause could be implemented in a way that addresses the preference reflected in the Constitution and the object clause of the Education Act, this could arguably be considered as complying with article 18 of the Covenant.
14.6 The Committee considers, however, that even in the abstract, the present system of partial exemption imposes a considerable burden on persons in the position of the authors, insofar as it requires them to acquaint themselves with those aspects of the subject which are clearly of a religious nature, as well as with other aspects, with a view to determining which of the other aspects they may feel a need to seek – and justify – exemption from. Nor would it be implausible to expect that such persons would be deterred from exercising that right, insofar as a regime of partial exemption could create problems for children which are different from those that may be present in a total exemption scheme. Indeed as the experience of the authors demonstrates, the system of exemptions does not currently protect the liberty of parents to ensure that the religious and moral education of their children is in conformity with their own convictions. In this respect, the Committee notes that the CKREE subject combines education on religious knowledge with practising a particular religious belief, e.g. learning by heart of prayers, singing religious hymns or attendance at religious services (para 9.18). While it is true that in these cases parents may claim exemption from these activities by ticking a box on a form, the CKREE scheme does not ensure that education of religious knowledge and religious practice are separated in a way that makes the exemption scheme practicable.
14.7 In the Committee's view, the difficulties encountered by the authors, in particular the fact that Maria Jansen and Pia Suzanne Orning had to recite religious texts in the context of a Christmas celebration although they were enrolled in the exemption scheme, as well as the loyalty conflicts experienced by the children, amply illustrate these difficulties. Furthermore, the requirement to give reasons for exempting children from lessons focusing on imparting religious knowledge and the absence of clear indications as to what kind of reasons would be accepted creates a further obstacle for parents who seek to ensure that their children are not exposed to certain religious ideas. In the Committee's view, the present framework of CKREE, including the current regime of exemptions, as it has been implemented in respect of the authors, constitutes a violation of article 18, paragraph 4, of the Covenant in their respect.”
In view of this finding, the Committee was of the opinion that no additional issue arose under other parts of Article 18 or Articles 17 and 26 of the Covenant. It gave the respondent State 90 days within which to provide “information about the measures taken to give effect to the Committee's Views.
D. Follow-up measures
(i) deleting in section 2-4(3) the reference to the Christian object clause in section 1-2;
(ii) giving the various religions and philosophies of life the same qualitative description in the aims of the subject, while maintaining the current proportions of various religions and philosophies of life in the central teaching material.
(iii) making the provision on partial exemption in current section 2-4(4) the subject of a separate provision, ensuring that the exemption arrangement take sufficient account of the parents' rights and the need to protect minorities; simplifying the provisions on applications for exemption; specifying in the Act the obligation of schools to provide information and circulating information to schools about the practice of the exemption arrangement.
(iv) drawing up a new curriculum making a clear division between those elements that could be viewed as the practice of religions and those elements that could not, while maintaining the distribution between the different parts of the subject.
(v) emphasising the choice of working methods in the introduction to the Curriculum and in the guidelines for the subject, in order to limit the possibility that parts of the teaching could be experienced as the practice of a religion.
Varied and engaging working methods should contribute to the dissemination of all aspects of the subject. It was emphasised that working methods that could be perceived as being close to the practice of a religion required special care on the part of teachers, including the provision of adapted teaching.
(vi) the proposed changes would be implemented from the school year 2005/2006. The introduction of the measures from the autumn of 2005 generated the need for strengthening the skills and competence of the teachers. The Government would commence the work of developing skills and competence as soon as a new curriculum had been finalised.
(vii) a high degree of flexibility should be displayed in relation to parents' wishes for adapted teaching for their child/children. If necessary, the option of full exemption on a temporary basis should be available for those parents who so wished pending implementation of the proposed permanent arrangements.
On the basis of the Government's decision, the Ministry started reviewing the necessary changes. Following proposals by the Ministry on 29 April 2005, endorsed by the Government on the same date (Ot.prp.nr.91(2004-2005)), on 17 June 2005 Parliament adopted certain amendments and additions to the Education Act 1998 which entered into force with immediate effect. As a result, a few adjustments were made to section 2-4(1) (notably, the word “faith” was replaced by “understanding of Christianity”; the requirement of thoroughness was extended to knowledge of other Christian communities) and the reference in section 2-4(3) to the object clause in section 1-2 was deleted (see paragraph 23 above). Moreover, the provisions on partial exemption in section 2-4 (4) were moved to a new and separate section 2-3A, with some clarifying additions and changes. This included, inter alia, replacing the expression “religious activities” (in former section 2-4(4)) with the word “activities” and extending the ground for partial exemption to cover also activities that the parents, from the point of view of their own religion or philosophy of life, perceived as being offensive or insulting (in addition to those that they perceived as amounting to the practice of another religion or adherence to another philosophy of life).
II. RELEVANT DOMESTIC LAW AND PRACTICE
“4. Solution: differentiated teaching and local adjustment of the Curriculum
4.1 Adjusted teaching and local work on the Curriculum as an underlying principle
Subsection 10 of section 13 of the Compulsory School Act provides that a school that receives notification concerning an exemption shall as far as possible, and especially at the primary school level, seek solutions by providing for 'differentiated teaching within the Curriculum'.
The differentiated teaching mentioned in the Act is closely related to the adaptation of teaching principle that is generally emphasised in the School Curriculum (Læreplanverket, L97) and embodied in section 7 of the Compulsory School Act. In the principles and guidelines, importance is attached to the principles of community and adjustment within the unified school system framework. Formulations there include that the following:-
Individual adjustment is necessary to ensure that equivalent provision is made for all pupils. For this purpose, all aspects of the school course - syllabus, working methods, organisation and teaching aids - must be adjusted in accordance with the pupils' capabilities.
It is further stated that this opens up opportunities for different treatment and depth of study of the syllabus, and for variations in kinds of material, difficulty, quantity, speed and progression (see L97/L97S).
....
4.2 Differentiation within the KRL syllabus - differentiation of activities, not of knowledge
According to the statute, a school that receives notification concerning an exemption shall seek solutions in which provision is made for differentiated teaching within the Curriculum. The municipal obligation to provide differentiated teaching applies as extensively as possible and particularly at the primary school stage. The reasons for the statute state that the differentiated teaching shall be provided according to the same curriculum, and is not to be differentiation of knowledge but differentiation of activities. Since there is no exemption from knowledge of the subject, pupils with an exemption shall receive instruction within the framework of the curriculum.
In cases to which partial exemption applies, the alternative is not another subject or another curriculum, but other activities and other ways of working with the KRL syllabus. The school must convey the knowledge in question to the pupils by means of a different methodological approach. Exemption can nevertheless be granted from certain main topics which entail specific activities. An example is the main topic in which pupils are required to learn the Ten Commandments by heart (Christian faith and ethics, 6th grade). One cannot, however, be exempted from knowing about the Ten Commandments.
The differentiated course of instruction must have regard for the pupils' religious or philosophical background, and help as far as possible to ensure that all pupils have worked with the same areas of knowledge in the grade in question, but using adjusted working methods.
How great the need for differentiation is depends locally on
- which religious or philosophical groups the parents belong to, and
- what kinds of activity they request exemption from.
...
6. Differentiation in encounters with specific activities
The Guide to the KRL subject contains an introduction to ways of working with the subject, and also deals with the questions discussed below. Some of the questions are dealt with more exhaustively here however. See also the concrete examples for each school year given in the guide.
We give examples below of how to work with various activities, and take up other questions that may arise:
6.1 Prayers, creed, and other important religious texts
Some activities - such as learning by heart and reciting creeds, commandments and prayers (LS97 pp. 96 and 101 and L97S pp. 101-09) may be perceived by some parents and guardians as the exercise of and/or adherence to a particular religion. When notification is given concerning an exemption from such activities, the school will offer differentiated instruction to enable the pupil to work with that kind of material in a different way.
If the parents find this satisfactory, they can choose to allow their children to be present when prayers or creeds from other religions are recited, provided the children are helped to maintain the necessary distance from the material and from what is taking place (see in this connection the section above on the roles of participant and spectator). Such activities can also be scheduled for individual working periods and for work in groups in which different approaches to the material are adopted.
6.2 Hymn singing
While arrangements are made for pupils who belong to the Christian tradition to sing hymns and to gain insight through that activity into an important feature of their religious and cultural tradition, necessary regard must be had for pupils who do not belong to that tradition. Hymn singing can also take place outside the Christian knowledge and religious and ethical education periods, for instance in music periods. Hymns can be incorporated into song periods, when they are placed in their musical context and seen as an important part of our sung cultural heritage.
Pupils who have been granted an exemption for hymn singing must be given other ways of working with hymns, as the case may be in separate groups. They can for instance listen to a hymn and be given such assignments as what is the hymn text about? Can you relate the content of the hymn to a particular festival, and if so, why? Why is this hymn important within the Christian tradition? Another possibility would be to use hymns and songs as a theme for project work, involving looking more closely at songs, hymns and music and their functions in the different religions.
See also the Guide to the KRL subject, p. 23.
6.3 Attendance at rituals/visits to churches or other religious assembly buildings
Some parents may wish to have their children exempted from entering a church or other centre of divine worship whatever the connection. Others will distinguish between attending a divine service or the like, and being in a church or other religious assembly building on an excursion in a teaching situation. Whatever position the parents may take, cooperation between schools and homes is of major importance whenever such visits are scheduled.
Excursions
In the fourth grade, pupils are to be made acquainted with the lay-out, fixtures and furnishing of churches and with certain important Christian symbols (programme item: Christian festivals, religious symbols, the life of the local Christian congregation). Most pupils will acquire this knowledge by means of pedagogically arranged excursions to the local church. The focus is on the informative and objective aims. Information may for instance be conveyed relating to the church building, church decoration, symbols, and the functions of various objects.
Some parents/guardians may notify exemption for their children from participation in such excursions because a visit to a church is regarded as participation in a religious activity.
For pupils who cannot visit a church, for instance, arrangements must be made for other activities and assignments at school. These should relate to the same area, so that the pupils are given access to parts of the same knowledge as they would have acquired on a church visit. Assignments can, for instance, be given relating to information booklets, if any, publications concerned with local history, or drawings, or pictures and posters showing or concerning the church in question.
See the example on p. 44 of the Guide to the KRL subject.
School services
The description of the aims of the primary school stage (L97 p. 94 and L97S p. 100) states that pupils should visit a church in the local community and attend a divine service. It is emphasised that such attendance is part of the school's teaching (not an element of the church's baptismal preparation). Some pupils who belong to traditions other than the Christian tradition may seek exemption from participation for instance in a school service and the related activities. Such pupils must be offered differentiated teaching. If the pupils are present at the service, this can be arranged by, for instance, assigning them to observe the functions of the various stages of the liturgy in relation to the whole, note how the hymns relate to the main theme of the service, or to see whether/how images, colours, texts and music all help to shed light on the theme of the service.
Other parents may notify complete exemption from any attendance at a divine service. Those pupils must be made acquainted with the Christian service by other means than attendance, for instance through classroom teaching with the focus on pictures, music and texts.
What has been said here about church visits can also apply to visits to mosques, synagogues, temples or other houses of religious assembly.
Illustration and the prohibition of images
See the more detailed discussion on p. 22 of the Guide to the KRL subject.
Especially challenging stories, parallel figures
See the more detailed discussion on pp. 30, 32, 50 and 52 of the Guide to the KRL subject.
6.4 Other areas
The Ministry has received questions concerning other aspects of the course in Christian knowledge and religious and ethical education, including:
Dramatisations
Plays, mime and dramatisations can contribute to sympathetic insight into the teaching material and to unity among pupils. Such approaches can at the same time involve the kinds of activity from which some parents/guardians wish to have their children exempted. This could for instance apply to dramatisations which include holy persons, such as Nativity plays.
Some may argue that it is the 'acting part of the work' from which exemption is being sought. That problem can be solved by giving the pupils concerned other important tasks connected with the dramatisation. Sets have to be constructed; lighting and sound need to be planned, set up and tested; programmes need to be prepared. An announcer and narrators are needed. Journalists are needed to interview the active participants in the programme, to describe the activities, and to edit the class newspaper for publication after the performance. These are some of the important assignments that can be carried out by pupils who are not going to be doing jobs relating directly to the dramatisation. These are also means whereby they can be naturally integrated into the class community, while at the same time having the opportunity to adopt a spectator's stance with regard to the material being presented and its mode of presentation.
Other parents may say that their children are not to be included either in the dramatisation or in work connected with it. This must be respected, and other assignments must be prepared for those pupils.
...
7. Cooperation between schools and homes - openness and objectivity
If parents are to feel confident that teaching in the subject does not conflict with their own convictions, close cooperation between schools and homes is necessary.
On the basis of knowledge of the religious and philosophical backgrounds of parents, teachers can endeavour to plan their teaching so as to reduce the need for exemption to a minimum. A teaching plan for the subject should be drawn up as early as possible. In the plan the school should describe the offers of differentiation that are generally made in connection with different religious and philosophical backgrounds. When the plan is presented to the parents, it gives them the opportunity to consider the need, if any, for exemption from particular activities.
To request partial exemption, parents must send written notification to the school. They must state which activities in the school's teaching they perceive as the exercise of another religion or adherence to another philosophy of life. Parents should then decide whether to opt for the general offer of differentiation, if the school has made such an offer, or, in addition, if appropriate, ask for a more individually adapted offer of differentiation. By means of the dialogue established in this connection between homes and schools, the specific teaching provisions for the pupils can be determined.
If parents notify the school that they want an exemption from the distinctly religious activities, described in the reasons for the legislation as 'reciting creeds or prayers, learning religious texts by heart, taking part in hymn-singing, and attending rituals or divine services in different congregations' such notification will apply in general to that type of activity. A new notification for each individual religious activity is thus not necessary.
In the cooperation between schools and homes, school staff must show respect for the fact that pupils have different religious backgrounds. Special attention must be paid to this in contacts with linguistic and cultural minorities.
8. Administrative procedures
Municipal decisions concerning notifications of exemption are individual decisions under the Public Administration Act, and can accordingly be appealed to National Education Offices in accordance with subsection 3 of section 34 of the Compulsory School Act. A municipality can delegate its decision-making authority to the school principal. Matters must be considered in sufficient depth before decisions are taken; see section 17 of the Public Administration Act.
...
10. Textbooks as one of several teaching aids in the subject
The Ministry wishes to emphasise that it is the Curriculum that is binding on the teaching, not the textbooks. The textbooks in the subject are only one of several teaching aids that can be used to achieve the aims of the subject.
The textbooks used in compulsory school must be approved. Even if a textbook has been approved, there is a risk that it contains errors. When teachers have their attention called to possible errors in textbooks, they must look into the matter more closely so that the teaching given is correct.
Although the regulatory special review of books in the subject has been revoked (section 4 of the former textbook regulation), the Ministry notes that the arrangement for the review of textbooks will be continued. The textbooks will be considered by religious and philosophical communities, among others, to ensure that the religions and philosophies of life are presented in accordance with their distinguishing characteristics.”
“The study of the subject is intended to give pupils a thorough insight into Christianity and what the Christian view of life implies, as well as sound knowledge of other world religions and philosophies. Important items in the Curriculum are accordingly the classical Bible stories and other biblical material, the main lines of development and major personalities in the history of Christianity, and the fundamentals of the Christian faith and Christian ethics. The subject also comprises the principal features of other living religions and philosophies of life and some of the major questions raised in philosophy and general ethics concerning the nature of man. The same pedagogical principles should be applied in the teaching of Christianity and in that of the other religions and orientations. The subject must be approached openly and contribute to insight, respect and dialogue across the boundaries between faiths and philosophies, and promote understanding and tolerance in religious and moral questions. The classroom is no place for the preaching of any particular faith. The subject gives knowledge about a faith, not instruction in it. It must also sustain the individual pupil's sense of identity and cultural attachment, while at the same time furthering dialogue within a shared culture.
In order to meet different faiths and views of life with understanding, one needs to be able to place them in a context that is already familiar. The subject thus has various functions in compulsory school: to transmit a tradition, to maintain a sense of identity, and to build bridges which give insight and promote dialogue.
...
The structure of the subject
|
|
The primary stage |
The intermediate stage |
The lower secondary stage |
|
Bible study |
Well-known stories from the Bible |
Major narratives in the Bible |
Biblical genres, the Bible as Scripture, Bible History |
|
History of Christianity |
Important single episodes |
Early history: trends, persons, cultural expressions |
Modern History: trends, person, cultural expressions |
|
Contemporary Christian view of life |
Festivals, symbols, Christianity in the community |
Christian faith and ethics |
Christian Confessions, similarities and differences |
|
Other religions |
Other religions and orientations, stories and festivals |
Islam, Judaism, Hinduism, Buddhism, Secular orientation |
Religious expressions in our time |
|
Ethics/philosophy |
Ethical awareness: mine and yours, I and others |
Ethical awareness: values and choices |
Philosophical interpretations of man: values and norms |
Because the subject is new and intended for all pupils, it is essential that parents and pupils of different persuasions are well acquainted with the syllabus and its contents. To reassure parents with regard to the contents of the syllabus, importance has been attached to formulating the syllabus so that parents will find it easy to see what subject matter pupils will be meeting at the various stages.
The general aims of the subject were described as:
“•to make pupils thoroughly acquainted with the Bible and with Christianity as cultural heritage and as a living source of faith, morality, and a view of life
• to make pupils familiar with the Christian and humanist values on which school education is based
• to acquaint pupils with other world religions and orientations as living sources of faith, morality, and views of life
• to promote understanding, respect and the capacity for dialogue between people with different views on questions of faith and ethical orientation of life
• to stimulate pupils' personal growth and development”
After setting out the objectives for grades 1 to 4, the Curriculum listed the main subject elements for grades 1 to 4, each of which comprised the following titles: “Biblical narrative”; “Narrative material from church history”; “Christian festivals, religious symbols, and the life of the local Christian community”; “Development of moral awareness: I and others”. As to “Other religious and ethical orientations” it included “Judaism”, “Islam”, “Hinduism”, “Buddhism”, “Humanism” and “Greek mythology”.
The Curriculum further set out the subject-related objectives for grades 5 to 7, which included this passage:
“Christian faith and ethics
Pupils should learn the fundamentals of the Christian faith and Christian ethics in the light of the positions taken in Luther's Small Catechism.
Other religions
Pupils should study the main features of and important narratives from Islam, Judaism, Hinduism, and Buddhism.
Secular orientations
Pupils should know about secular orientations, the development of the humanist tradition, and the modern humanist view of life.”
The main subject elements for grades 5 to 7 encompassed: “Bible History”, “Early history of Christianity” (“the Middle Ages” in grade 6 and “the Reformation period” in grade 7), “Christian faith and ethics”. As to “Other religions”, the subject included “Islam” for grade 5, “Judaism” for grade 6 and “Hinduism” and “Buddhism” for grade 7. In addition, grades 5 to 7 contained elements for “Development of moral awareness: Values and choices” and “Secular orientations”.
For grade 6 it was stated inter alia:
“Christian faith and ethics
Pupils should have the opportunity to
- learn the Ten Commandments by heart and be acquainted with the ethical ideals underlying the Sermon on the Mount
- learn something of how these fundamental ethical texts have been used in the history of Christianity and how they are applied today”
There was no equivalent in the list of items to “become acquainted with” in regard to “Other religions, Judaism”.
After indicating the subject-related objectives for grades 8 to 10, the Curriculum listed the main subject elements, namely, “The history of the Bible, literary genres in the Bible”; “The modern history of Christianity”; “Various contemporary interpretations of Christianity”; “Religious expressions in our time”; Philosophical interpretations of man, values and norms”.
COMPLAINTS
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
2. The Government
B. Assessment by the Court
1. General principles
(a) The two sentences of Article 2 of Protocol No. 1 must be interpreted not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention (see Kjeldsen, Busk Madsen and Pedersen, cited above, p. 26, § 52).
(b) It is on to the fundamental right to education that is grafted the right of parents to respect for their religious and philosophical convictions, and the first sentence does not distinguish, any more than the second, between State and private teaching. The second sentence of Article 2 of Protocol No. 1 aims in short at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the “democratic society” as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised (see Kjeldsen, Busk Madsen and Pedersen, cited above, pp. 24-25, § 50).
(c) Article 2 of Protocol No. 1 does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents' convictions, be they religious or philosophical, throughout the entire State education programme (see Kjeldsen, Busk Madsen and Pedersen, cited above, p. 25, §51). That duty is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the “functions” assumed by the State. The verb “respect” means more than “acknowledge” or “take into account”. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State. The term “conviction”, taken on its own, is not synonymous with the words “opinions” and “ideas”. It denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Valsamis, cited above, pp. 2323-24, §§ 25 and 27, and Campbell and Cosans, cited above, pp. 16-17, §§ 36-37).
(d) Article 2 of Protocol No. 1 constitutes a whole that is dominated by its first sentence. By binding themselves not to “deny the right to education”, the Contracting States guarantee to anyone within their jurisdiction a right of access to educational institutions existing at a given time and the possibility of drawing, by official recognition of the studies which he has completed, profit from the education received (see Kjeldsen, Busk Madsen and Pedersen, cited above, pp. 25-26, § 52, and Belgian linguistic case (merits), judgment of 23 July 1968, Series A no. 6, pp. 31-32, § 4).
(e) It is in the discharge of a natural duty towards their children - parents being primarily responsible for the “education and teaching” of their children - that parents may require the State to respect their religious and philosophical convictions. Their right thus corresponds to a responsibility closely linked to the enjoyment and the exercise of the right to education (ibid.).
(f) Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Valsamis, cited above, p. 2324, § 27).
(g) However, the setting and planning of the curriculum fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era (see Valsamis, cited above, p. 2324, § 28). In particular, the second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable (see Kjeldsen, Busk Madsen and Pedersen, cited above, p. 26, § 53).
(h) The second sentence of Article 2 of Protocol No. 1 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions. That is the limit that must not be exceeded (ibid.).
(i) In order to examine the disputed legislation under Article 2 of Protocol No. 1, interpreted as above, one must, while avoiding any evaluation of the legislation's expediency, have regard to the material situation that it sought and still seeks to meet. Certainly, abuses can occur as to the manner in which the provisions in force are applied by a given school or teacher and the competent authorities have a duty to take the utmost care to see to it that parents' religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism (see Kjeldsen, Busk Madsen and Pedersen, cited above, pp. 27-28, § 54).
2. Application of those principles to the present case
In addition, pursuant to section 2-4(1)(ii), the transmission of knowledge of other Christian communities was an aim (see paragraph 23 above).
The difference as to emphasis was also reflected in the Curriculum, where approximately half of the items listed referred to Christianity alone whereas the remainder of the items were shared between other religions and philosophies. The Introduction stated that “The study of the subject is intended to give pupils a thorough insight into Christianity and what the Christian view of life implies as well as sound knowledge of other world religions and philosophies [emphasis added]” (see paragraph 49 above).
In this regard the Court reiterates that, as pointed out in its admissibility decision of 14 February 2006, the limitations on the scope of the case that followed from the decision of 26 October 2004 declaring parts of the application inadmissible do not prevent it from considering the general aspects of the partial exemption arrangement in its examination of the complaint regarding the refusal of full exemption (see paragraph 8 above).
Accordingly, the Court finds that the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation of Article 2 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 8 AND 9 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL NO. 1
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
B. Costs and expenses
(a) NOK 308,558 incurred before the domestic courts;
(b) NOK 637,066 for the lawyer's work in the proceedings before the Court from 2002 to 2006;
(c) NOK 34,174 for the travel expenses for counsel, advisors and the applicants in connection with the oral hearing in Strasbourg on 6 December 2006.
The above amounts included value added tax (“VAT”).
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants jointly, within three months, EUR 70,000 (seventy thousand euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 29 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent
Berger Jean-Paul Costa
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:
(a) separate opinion of Mr Zupančič and Mr Borrego Borrego;
(b) joint dissenting opinion of Mr Wildhaber, Mr Lorenzen, Mr Bîrsan, Mr Kovler, Mrs Steiner, Mr Borrego Borrego, Mr Hajiyev and Mr Jebens.
J-P.C.
V.B.
SEPARATE OPINION OF JUDGES ZUPANČIČ AND BORREGO BORREGO
We regret that the Grand Chamber has not declared this application inadmissible and that the First Section's decision of 14 February 2006 has not been revised in accordance with Article 35 § 2 b) of the Convention.
In our opinion, this application is inadmissible and the Grand Chamber could and should have declared it inadmissible.
1. The Grand Chamber could have declared the application inadmissible.
Article 35 § 4 of the Convention provides that the Court “shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings”.
Under that provision, an application was declared inadmissible after having been admitted by the Chamber (Hobbs, Richard, Walsh and Geen v. United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, 14 November 2006). In Mihailescu v. Romania ((dec), no. 32913/96, 22 June 2004) the Chamber also reviewed a previous admissibility decision even though the Government had not raised a plea of inadmissibility at the proper stage of the proceedings.
The Grand Chamber has previously declared that it may reconsider the admissibility decision of the Chamber in case of referral to the Grand Chamber under Article 43 of the Convention, whether the Government raise a plea of inadmissibility at the proper stage of the proceedings (Azinas v. Cyprus [GC], no. 56679/00, § 32, CEDH 2004-III) or not (Blečić v. Croatia [GC], no. 59532/00, § 65, ECHR 2006-).
According to the judgment in Blečić v. Croatia, the Grand Chamber may reconsider of its own motion the questions concerning its own domain even if the Government have not raised a plea of inadmissibility. Obviously, international litispendence is a matter to which the Court must have regard.
It should be borne in mind that, in the present case, the Third Section decided, with regard to the question of international litispendence, to “adjour[n] this question for a future examination together with the substance of the applicants' complaints” (decision of 26 October 2004). The case was subsequently transferred to the First Section, which decided on 14 February 2006 that “the Government's request to the Court to declare the application inadmissible under Article 35 § 2 b) of the Convention must be rejected”.
2. The Grand Chamber should have declared the application inadmissible.
As to the scope of the case before the domestic courts, there was a single case: “The applicants' complaints regarding full exemption from the KRL subject had been adjudicated in a single case together with identical claims from four other sets of parents. Before the Supreme Court and the lower courts, all the plaintiffs had been represented by the same lawyer and had all made identical claims. The lawyer had made one simple presentation on behalf of all parties, and no attempts had been made to individualize the cases of the different parties. Accordingly, the claims had been adjudicated as one by the domestic courts, which had passed single judgements in which all the petitioners' claims had been dealt with as a whole” (decision of 14 February 2006).
Once the case had been examined by the domestic authorities, it was submitted to the European Court of Human Rights on 15 February 2000. One month and ten days later, the case was submitted to the Human Rights Committee in Geneva. “The complaints made to the respective institutions concerned substantially the same matters ... The essential parts of their complaints were the same, word by word” (decision of 14 February 2006).
In short: seven families, all together in a united group, and a single set of domestic proceedings which resulted in a single judgment by the Supreme Court. Nevertheless, despite having submitted a joint application before the domestic courts, three of these families lodged a petition before the European Court of Human Rights and the four others did the same before the Human Rights Committee in Geneva.
The Human Rights Committee admitted the petition in November 2004 as “the authors have demonstrated that they are individuals distinct from those of the three sets of parents that filed a complaint with the ECHR”.
As to the European Court of Human Rights, in February 2006 it decided that, “notwithstanding the common features between the application lodged under the Convention in Strasbourg and the communication filed under the UN Covenant in Geneva”, there was no personal identity between the two groups of families and therefore rejected the Government's request to declare the application inadmissible.
Article 35 § 2 b) of the Convention and Article 5 § 2 a) of the Optional Protocol of the UN Covenant share the same purpose, which is to prevent two different international organs from providing different or even contradictory interpretations concerning “the same matter”.
In Cereceda Martin and Others v. Spain (no. 16358/90) the former European Commission of Human Rights declared the application inadmissible on the ground that “whilst it is true that, formally speaking, the 23 individual applicants before the Commission are not the complainants who appeared before the organs of the ILO,...the parties can be regarded as essentially identical”.
International bodies examine domestic decisions given in domestic proceedings in which any of the parties (claimants or defendants) can be an individual or a group of individuals.
Both the Human Rights Committee (without a prior decision of the ECHR) and the European Court of Human Rights (aware of the Human Rights Committee's decision) came to the conclusion that the key issue was not whether there had been a single set of domestic proceedings, or whether the single judgment had been examined by two different international bodies, or whether the facts submitted before the two organs were identical. No. What really mattered was the fact that, as the applicants were a group of individuals, some of them had opted to petition the Human Rights Committee and some of them had submitted an application to the European Court of Human Rights. To put it briefly, different applicants of the same party had addressed different international bodies.
International litispendence exists if the case concerns “the same matter”, “the same judgment”, “the same complaint”, ”the same party” and the like. In this case, according to the interpretation given by the majority, international litispendence ceases to exist when different individuals of the original group of applicants decide to separate in two groups to submit the same matter before different international organs.
Nevertheless, the risk of contradictory decisions, in which international litispendence has its origin, does exist. This is an example of what the Convention and the Optional Protocol tried to avoid. Unfortunately, their subsequent interpretation by the competent international organs has deprived them of their original sense.
The
Court's judgment, adopted by nine votes to eight, may lead us to
think that the exception of litispendence has been buried, even if –
as contradictory as it may seem – in the present case it shows
signs of being in good health. This is a pity.
JOINT DISSENTING OPINION OF JUDGES WILDHABER, LORENZEN, BÎRSAN, KOVLER, STEINER, BORREGO BORREGO, HAJIYEV AND JEBENS
We do not share the opinion of the majority, expressed above, that there has been a violation of Article 2 of Protocol No. 1 in this case. Our reasons for this are as follows.
First of all, it is necessary to clarify the scope of the case before the Court. On 26 October 2004 the Court declared the application inadmissible as far as the children were concerned, and also declared inadmissible the parents' complaints about the possibilities and modalities for obtaining a partial exemption from the KRL subject. The inadmissibility decisions were based on failure to exhaust domestic remedies in that the children had not been parties to the domestic proceedings and the applicant parents' lawsuit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally and against the impossibility of obtaining a full exemption from the subject.
The scope of the case before the Court is therefore more limited than that reviewed on the merits by the UN Committee in the parallel case brought by four other sets of parents who had been parties to the same domestic proceedings and by their children. The Committee had declared the case admissible as a whole and had reviewed not only the children's concrete situation, but also the complaint about partial exemption (see paragraphs 43 to 45 of the judgment). Therefore, our conclusions should not be viewed as contradicting those reached by the UN Committee in the other case.
As pointed out in the admissibility decision of 14 February 2006, the limitations as to the scope of the case that follow from the inadmissibility decision of 26 October 2004 do not prevent the Court from considering the general aspects of the partial exemption arrangement in its examination of the complaint regarding the refusal of full exemption. However, it would not be in conformity with the limited scope of the case, as clarified above, if the Court were to undertake an evaluation of the partial exemption scheme or even discuss how it worked in practice. In our view, the majority of the Court overstep the limitations as to the scope of the case when discussing the partial exemption scheme and how it works in detail (see paragraphs 97 to 100 of the judgment). The case before the Court is clearly only the KRL subject in general, with a possibility of a partial, but not a full exemption. This coincides with the issue that was presented before the Supreme Court. Consequently, our examination will not deal with the applicant's arguments based on the textbooks, which were not binding on the teachers and represented only one of several possible teaching aids.
In our opinion, a review of the case requires a twofold approach, namely, in the light of the requirements of modern Norwegian society and with its history as an important background. On the one hand, the increasing number of Norwegian citizens with different ethnicities and religious beliefs calls for inclusive measures, with a common education in religions and ethics in schools. On the other hand, when devising the curriculum, one cannot overlook the many centuries of Norwegian history. Christianity has a very long tradition in Norway, both as a religion and a school subject (see paragraphs 9 and 10 of the judgment). This aspect must be reflected in the curriculum, which must at the same time be inclusive and broad.
Article 2 of the Constitution guarantees freedom of religion in its first paragraph, but states in its second paragraph that the Evangelical Lutheran Religion is to be the State's official religion. No less than 86 % of the population are members of the State Church (see paragraph 9 of the judgment). Furthermore, the second paragraph confers on its adherents an obligation to educate their children likewise. It is, however, no longer accompanied by any sanctions and in the legal doctrine today is not regarded as a legal obligation (see Johs. Andenæs and Arne Fliflet, Statsforfatningen i Norge, 10th edition, 2006, pp. 391-392).
Unlike the majority, who do not take a stance on this, we find it necessary to address the question whether the second paragraph of Article 2 of the Constitution is capable of raising an issue under Article 2 of Protocol No. 1 or Article 9 of the Convention. In our opinion, it is not. The notion of pluralism embodied in these provisions should not prevent a democratically elected political majority from giving official recognition to a particular religious denomination and subjecting it to public funding, regulation and control. Conferring a particular public status on one denomination does not in itself prejudge the State's respect for parents' religious and philosophical convictions in the education of their children, nor does it affect their exercise of freedom of thought, conscience and religion.
We are not persuaded by the applicants' argument that the mention in section 2-4 (3) that the teaching should take as a starting point the Christian object clause in section 1-2(1) gave the subject a strong Christian leaning. As was clear from the wording of the latter provision, the object – to “help give pupils a Christian and moral upbringing” – was contingent on the parents' “agreement and cooperation” (see paragraph 22 of the judgment). The provision made no exception to the rule laid down in the preceding paragraph that the KRL subject was an ordinary school subject that should not be taught in a preaching manner. It suggests no departure from the requirements that the teacher should present all the different religions and philosophies from the standpoint of their particular characteristics and apply the same pedagogical principles to the teaching of the different topics. These principles applied across the board to all aspects of the curriculum, including activities such as prayers, psalms, the learning of religious texts by heart and the participation in plays of a religious nature.
While Christianity represented a greater part of the curriculum than other world religions and philosophies, it should be emphasised that the latter, covering a wide spectrum of world religions and philosophies, constituted roughly a half, or at least a major part, of the subject (see paragraph 23 of the judgment). We see no reason to doubt that the aims set out in items (i) to (iii) – to transmit knowledge about Christianity and other world religions and philosophies – served to forward a further aim, stated in item (v): to promote understanding, respect and the ability to maintain a dialogue between people with different perceptions, beliefs and convictions (ibid.). The notion of knowledge went hand in hand with mutual understanding and respect and with intercultural dialogue.
Furthermore, it should be stressed that the aim in item (iv) – to promote understanding and respect for values – embraced not just Christian, but also humanist values. This was indeed reflected in the curriculum, which laid down “Development and moral awareness” as an objective for grades 1 to 7, with the angle “I and others” for grades 1 to 4 and “Values and Choices” for grades 5 to 7, and “Philosophical Interpretations of Man – values and norms” for grades 8 to 10.
Against this background, we do not find that the legal framework implied qualitative differences regarding the teaching of Christianity as compared with that of other religions and philosophies. The fact that Christianity was given priority is true only as far as the quantity of the different religions and other elements of the KRL subject is concerned. Furthermore, it is important to note that Christianity is not only the state religion of Norway, but also forms an important part of Norwegian history. In our opinion, the KRL subject clearly fell within the limits of the competence of the Contracting States under Article 2 of Protocol No. 1 (see the reference from Kjeldsen, Busk Madsen and Pedersen, § 53 in paragraph 84 (g)).
Furthermore, we do not agree that the partial exemption scheme gives reason to reach a different conclusion. On the contrary, the possibility of obtaining a partial exemption from the KRL subject takes into account the needs of parents who belong to religions other than Christianity or to no religion at all. Under section 2-4(4) “a pupil shall, on the submission of a written parental note, be granted exemption from those parts of the teaching in the particular school concerned that they, from the point of view of their own religion or philosophy of life, consider as amounting to the practice of another religion or adherence to another philosophy of life”.
In our view, it was not unreasonable to expect that parents who might want an exemption would take appropriate steps to inform themselves about the contents of the subject, by for instance consulting the curriculum. Nor do we find anything abnormal or intrusive about the requirement to give reasons. It is not uncommon that in their relations with the authorities citizens are asked to give certain information, even of a sensitive personal nature, when seeking exemption from a general obligation. The fact that such a possibility is more frequently solicited by some groups than by others does not in itself mean that the exemption scheme is arbitrary. In this instance, no grounds had to be given for a parental notice of a request for an exemption from activities such as prayers, psalms, the learning of religious texts by heart and participation in plays of a religious nature. Grounds had to be given if the request concerned other aspects of the curriculum but with the sole purpose of enabling the school to assess whether the parent held a reasonable perception that the teaching would amount to the practice of or adherence to another religion or philosophy of life. This was not tantamount to requiring the parents to disclose their own conviction. In this connection it should be borne in mind that, under Article 2 of Protocol No. 1, the question is whether the teaching would be contrary to the parents' “convictions”, a term that is not synonymous with the words “opinions” and “ideas” but denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Valsamis, cited above, § 25).
In the light of these considerations, we do not find that the arrangement for a partial exemption entailed an excessive or unreasonable burden for parents who wished to make a request for an exemption, transgressing the margin of appreciation of the respondent State under Article 2 of Protocol No. 1, as interpreted in the light of Articles 8 and 9 of the Convention.
Moreover, certain safeguards existed in respect of decisions taken by the school authorities on parental notice of a request for a partial exemption. Such decisions could be appealed against to the National Education Office and, ultimately, to the national courts (see subtitle 8 of the citation in paragraph 48 of the judgment).
We have further taken note of the provision in section 2-4(4) applying to situations where a partial exemption has been requested, namely that “the school shall as far as possible seek to find solutions facilitating differentiated teaching within the school curriculum” (see paragraph 23 of the judgment). A detailed outline with examples of how differentiated teaching was to be implemented may be found in Circular F-03-98, from which it can be seen that the teacher was to apply, in cooperation with the parents, a flexible approach, having regard to the parents' religious or philosophical affiliation and to the kind of activity at issue. We note in particular that for a number of activities, for instance prayers, the singing of hymns, church services and school plays, it was proposed that observation by attendance could suitably replace involvement through participation, the basic idea being that, with a view to preserving the interest of transmitting knowledge in accordance with the curriculum, the exemption should relate to the activity as such, not to the knowledge to be transmitted through the activity concerned (see paragraph 48 of the judgment). We find no reason to question this approach, which was a matter of expediency that fell within the national margin of appreciation as to the planning and setting of the curriculum.
Against this background, we are satisfied that the respondent State, in fulfilling its functions in respect of education and teaching, had taken care that information or knowledge included in the curriculum of the KRL subject was conveyed in an objective, critical and pluralistic manner. It could not be said to have pursued an aim of indoctrination contrary to the parents' right to respect for their philosophical convictions and thereby transgressing the limits implied by Article 2 of Protocol No. 1.
Accordingly, the refusal to grant the applicant parents a full exemption from the KRL subject for their children did not entail a violation of Article 2 of Protocol No. 1.
1 The abbreviation used by the Committee for the KRL subject.