AS TO THE ADMISSIBILITY OF
by Ingebjørg FOLGERØ and Others
The European Court of Human Rights (Third Section), sitting on 26 October 2004 as a Chamber composed of:
Mr G. Ress,
Mr L. Caflisch,
Mr R. Türmen,
Mr B. Zupančič,
Mrs H.S. Greve,
Mr K. Traja,
Mrs A. Gyulumyan, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 15 February 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The nine first applicants are respectively parents, who are members of the Association, and their children, who were primary school pupils at the time of the events complained of in the present case: Mrs Ingebjørg Folgerø (1960), Mr Geir Tyberø (1956) and their son Gaute A. Tyberø (1987); Mrs Gro Larsen (1966), Mr Arne Nytræ (1963) and their two sons Adrian Nytræ (1987) and Colin Nytræ (1990); Mrs Carolyn Midsem (1953) and her son, Eivind T. Fosse (1987). The last applicant is the Norwegian Humanist Association (Human-Etisk Forbund). They are represented before the Court by Mr L. Stavrum, a lawyer practising in Lillehammer, Norway.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Factual background to the present case
Norway has a State religion and a State Church, of which 86% of the population are members. Article 2 of the Constitution provides:
“Everyone residing in the Kingdom 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.”
Instruction on the Christian faith has been part of the Norwegian school curriculum since 1739. As from 1889 members of religious communities other than the Church of Norway were entitled to be exempted in whole or in part from the teaching of the Christian faith.
1. The former Obligatory School Act 1969
In connection with the adoption of the former Obligatory School Act 1969 (lov om grunnskolen, 13 June 1969 no. 24, hereinafter referred to as “the 1969 Act”), Parliament decided that such teaching should no longer be a part of the baptismal instruction of the Church but should be aimed at teaching the main contents of the history of the Bible, the principal events in Church history and the basic knowledge for children of the Evangelical Lutheran Confession (section 7 (4) of the Act).
Under the so-called “Christian object clause” (den kristne formålsparagraf) in section 1 of the Act:
“The primary school is, with the understanding and co-operation of the home, to assist in giving the pupils a Christian and moral education and, develop their abilities, spiritual as well as physical, and give them good general knowledge so that they can become useful and independent human beings at home and in society.
The school shall promoted spiritual freedom and tolerance, and place emphasis on creating good conditions for co-operation between the teachers and the pupils and between the school and the home.”
The teachers were required to teach in accordance with the Evangelical Lutheran Confession (section 18 (3), added in 1971).
Pursuant to section 12 (6) of the 1969 Act, children of parents who were not members of the Church of Norway were entitled, upon the parent's request, to be exempted in whole or in part from lessons on the Christian faith. This applied to parents who were not members of the Church of Norway. Pupils who had been exempted could be offered alternative lessons in philosophy.
Between 1993 and 1997 a process of reform of the compulsory primary and secondary school took place. In the spring of 1993 the Parliament decided to bring school start forward from the age of 7 to 6 and the next spring it extended the obligatory school from 9 to 10 years. A new curriculum was presented to Parliament. The majority of the Parliamentary Committee for Church Affairs, Education and Research proposed that Christianity, other religions and philosophy be taught together. It emphasised the importance of ensuring an open and inclusive school environment, irrespective of the pupils' social background, religious creed, nationality, sex, ethnical belonging or functional ability. The school should be a meeting place for all views. Pupils having different religious and philosophical convictions should meet others and gain knowledge about each other's thoughts and traditions. The school should not be an arena for preaching or missionary activities. It was noted that since 1969 the subject had ceased to be part of the State Church's baptismal instruction. The subject should give knowledge and insight but should not be a tool for religious preaching. The Committee's majority further considered that guidelines for exemptions should be worked out in order to achieve a uniform practice and that minority groups should be consulted. Exemptions should be limited to parts of the subject, especially material of confessional character and participation in rituals.
Subsequently, a white paper (St.meld. nr. 14 for 1995-1996) on Christianity, Religion and Philosophy (kristendomskunnskap med religions- og livssynsorientering, hereinafter referred to as “the KRL subject”) was presented, in which the Ministry of Church Affairs, Education and Research indicated the following guidelines for making exemptions:
“No pupil should feel that being exempted is unpleasant or stigmatising;
No pupil should be pressurised to stand out as a representative for a specific life stance 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 form 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 constitute a matter for discussion in the teaching.
An exemption does not mean a freedom to be ignorant...”
The majority of the above-mentioned parliamentary Committee endorsed the curriculum in the main and pointed out that Christianity should form the central part of the subject (Innst.s.nr 103 for 1995-1996). It further stated:
“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 school 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.”
A minority of one proposed that, for all primary school pupils, there should be a right to full exemption from the KRL subject and to an alternative teaching.
In the course of preparing the amendments to the law, the Ministry commissioned Mr E. Møse, then a High Court Judge, to make an assessment of the obligatory education in the KRL subject from the angle of Norway's obligations under public international law. In his report of 22 January 1997, he concluded:
“[N]either the object clause of the Primary School Act taken on its own or together with Article 2 of the Constitution and other special rules on the Church and schools, provide a basis for establishing that the teaching of Christianity under the new syllabus will of legal necessity become preaching, educative or influential in the direction of the Evangelical Lutheran Faith. The legislator may chose to provide preaching education in relation 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 remains, from a legal point of view, from the somewhat unclear concept “confessional basis”, is that a natural consequence of the State Church system is that the legislator lets the instruction on 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 major part 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.”
As regard the issue of exemption from the KRL subject, Mr Møse stated:
“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 doubtful questions that the obligatory education raises. Though 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.”
Sections 7 and 13 of the 1969 Act were amended by an Act of 19 June 1997 no. 83, with effect from 1 July 1997. The new provisions, plus an object clause similar to section 1 of the former 1969 Act, were subsequently included in respectively sections 2-4 and 1-2 of the Education Act 1998 (Lov om grunnskolen og den videregående opplæring av 17. juli 1998 nr. 61 “opplæringsloven”, hereinafter referred to as ”the 1998 Act”), which entered into force on 1 August 1999.
Section 2-4 reads:
“The instruction on Christianity, Religion and Philosophy shall
- Transmit thorough knowledge about the Bible and Christianity as a cultural heritage and the Evangelical Lutheran Faith,
- Transmit knowledge on other Christian communities,
- Transmit knowledge about other world religions and philosophies, ethical and philosophical subjects,
- Promote understanding and respect for Christian and humanist values, and
- Promote understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions.
The instruction on Christianity, Religion and Philosophy is an ordinary school subject, which should normally gather 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 subjects.
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 life stance, consider as amounting to the practising of another religion or adherence to another life stance. This may concern inter alia religious activities within or outside the classroom. In the event of a parental note requesting exemption, the school shall in so far as is possible seek to find solutions by facilitating differentiated teaching within the school curriculum.”
From the drafting history it follows that the expression “religious activities” was meant to cover, for example, prayers, psalms, the learning of religious texts by heart and the participation in plays of a religious nature.
According to a circular by the Ministry of 10 July 1997, a parental note to the school requesting exemption should contain reasons setting out what they consider amounted to practising another religion or adherence to another life stance. The pupil should be granted an exemption after the parents had specified the reasons. If the request was rejected, the parents had a right to appeal to the State Education Office in the County concerned. The compliant was sent via the school which then had an opportunity to alter its decision.
The requirement of giving reasons was further specified in a ministerial circular of 12 January 1998, according to which no reasons were required for making an exemption from clearly religious activities. Beyond that, with regard to matter falling outside the main rule for making exemptions, stricter requirements applied with respect to reasons.
In connection with the preparations of the KRL subject, associations representing minority convictions expressed strong objections, notably that the subject was dominated by the Evangelical Lutheran Christianity and contained elements of preaching. The Norwegian Humanist Association commented inter alia that the subject had a denominational basis (konfesjonsforankring) and that the possibilities foreseen for obtaining exemption for only parts of the subject was inadequate. At its national congress in May 1997 the Association decided to invite Parliament to reject the Government's proposal to limit the right of exemption.
From the autumn of 1997, the KRL subject was gradually introduced in the primary school curriculum, replacing the subject of Christianity and philosophy of life. During the school year of 1999 and 2000, the subject had been introduced at all levels.
3. Evaluations made of the KRL subject
On 18 October 2000 the Ministry issued a press release informing about the completion of two evaluation reports on the KRL subject, one entitled Parents', pupils and teachers' experiences with the KRL subject” (Foreldres, elevers og læreres erfaringer med KRL-faget), provided by Norsk Lærerakademi, the other entitled “A subject for every taste? An evaluation of the KRL subject” (Et fag for enhever smak? En evaluering av KRL-faget) by the Høgskulen i Volda and Diaforsk. The Parliament had requested that a survey of the practising of the exemption rules be prepared after a three-year period. Both reports concluded that the arrangement of partial exemption did not work as intended and should therefore be thoroughly reviewed.
B. Judicial proceedings brought by the applicants
In the meantime, on 14 March 1998 the Norwegian Humanist Association, together with eight couples of parents, who were members of the Association and whose children went to primary school, brought proceedings before Oslo City Court (byrett) on account of administrative refusals of the parents' applications for full exemption from the teaching of the KRL subject. They claimed that the refusal of full exemption violated the parents' and the children's rights under Article 9 of the Convention and Article 2 of Protocol No. 1, taken on their own or in conjunction with Article 14 of the Convention. They also invoked, amongst other provisions, Articles 18 and 26 of the 1966 International Covenant on Civil and Political Rights and Article 13 § 3 of the 1966 International Covenant on Economic, Social and Cultural Rights.
By a judgement of 16 April 1999 the City Court rejected the State's objection that the Association lacked legal interests and hence did not have legal standing. However, on the substantive issues arising, the City Court found for the State and rejected the appeal.
The Association and the parents appealed to the Borgarting High Court (lagmannsrett).
On 6 October 2000 the High Court delivered a judgment in which it upheld the City Court's judgement.
On a further appeal by the applicants, the Supreme Court (Høyesterett), by a judgment of 22 August 2001, unanimously dismissed the appeal in as far as concerned the Association, on the ground that it lacked a legal interest sufficient to have standing in the case. In as far as concerned the other plaintiffs, it unanimously rejected their appeal and upheld the High Court's judgment.
In his reasoning, approved in the main by the other four Justices sitting in the case, the first voting judge, Mr Justice Stang Lund, undertook an extensive analysis of the legislative history, the position under international human rights law, notably the relevant provisions and case-law of the European Convention and the 1966 International Covenant on Civil and Political Rights. He held that, if interpreted against this background, section 2-4(4) of the 1998 Act must be understood to the effect that pupils had a right to be exempted and that their parents had no obligation to let their children follow lessons on religion and philosophy regarded as preaching or indoctrinating in the sense of those treaties. The children could therefore be absent from such teaching. The question as to how large a part of the syllabus would be affected in this way would have to be decided in each concrete case depending on how the teaching was planned and implemented. In the view of Mr Justice Stang Lund, the provision on exemption was not contrary to any requirements pertaining to religious freedom and parental rights.
Mr Justice Stang Lund further considered the parts of the school curriculum that, in the plaintiffs' submission, gave preference to the Christian faith and influenced pupils to opt for Christianity. However, he observed, what mattered was that pupils gain 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. As to the plaintiffs' objections against influencing pupils through the use of pictures, songs, drama, music and stories from the Bible and religious texts, Mr Justice Stang Lund did not find that teaching which in a neutral manner imparted to the pupils, religious traditions and ways of transmitting the knowledge, could run counter to international human rights law. The curriculum placed emphasis on openness, insight, respect and dialogue as well as the promotion of understanding and tolerance in discussion on religious and moral issues and forbade preaching. Within the framework of the curriculum, the teaching of the KRL subject could be carried out without any conflict with relevant provisions of international human rights law.
As to the plaintiffs' argument that the school manuals, notably volumes 2, 3, 5, and 6 of “Bridges”, were preaching and capable of influencing the pupils, Mr Justice Stang Lund observed that, while several definitions of problems and formulations used in “Bridges” could be understood as if the Christian faith provided the answer to ethical and moral questions, no further information had been submitted to the Supreme Court as to how the teaching in relation to this material had been planned and implemented.
In this context Mr Justice Stang Lund noted that the plaintiffs' law suit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally. The arguments and evidence adduced in relation to each decision to refuse full exemption had been aimed at highlighting how the subject functioned generally. There was no basis for determining whether the teaching of the plaintiffs' children had occurred in a manner which violated the relevant human rights treaties. The case concerned the validity of the decisions refusing full exemption from the KRL subject. The plaintiffs had not shown it to be probable that the teaching had been planned and implemented in a manner that, according to these treaties, warranted exemption from all teaching of the subject in question.
Finally, Mr Justice Stang Lund reviewed the argument of discrimination. He observed that a right to exemption from whole or parts of the obligatory education in the KRL subject would lead to differential treatment. Parents and pupils who wished an exemption had to follow the syllabus carefully and seek exemption when they found this necessary in order to preserve the children's and their own interests. While, a requirement to provide detailed reasons might run counter to Articles 8 (private life) and Article 9 of the Convention, under the arrangement in issue a parental note had to be submitted indicating the wish for exemption and roughly what parts of the syllabus. The arrangement pursued a legitimate aim and did not entail a disproportionate interference, provided that the school facilitated the parents' task in keeping informed about the teaching. The common obligatory education implied a strong effort in informing the parents. However, the plaintiffs had not specifically dealt with the requirement to give reasons nor the contents of the reasons that they had given for their requests for exemption. There was thus no basis for establishing discrimination invalidating the disputed refusals.
The applicants complain that the refusal of the competent domestic authorities to grant the children a full exemption from the KRL subject violated the applicants' rights under the Convention. The children's compulsory attendance at religious instruction unjustifiably interfered with their and their parents' right to freedom of conscience and religion under Article 9 of the Convention. It further violated the parents right under Article 2 of Protocol No. 1, second sentence, to ensure such education and teaching in conformity with their own religious and philosophical convictions. Moreover, the manner in which the granting of exemption operated required parents to describe in detail the parts of the education or teaching which conflicted with their own convictions, and thereby reveal aspects of their own life stance, had the effect of stigmatising the children or putting them in a situation as “go-betweens”, in breach of their right to respect for private life under Article 8 of the Convention.
In addition, the above-mentioned inconveniences resulting from the limited possibilities and the modalities for requesting an exemption meant that non-Christian parents were faced with a greater burden than Christian parents who had no reason for seeking an exemption form the KRL subject, which was designed on the premises of the majority. In their view this amounted to discrimination. Thus, in the applicants' submission, there had also been a violation of Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1, taken together with Article 14 of the Convention.
On 4 December 2003 the Court decided (Rule 54 § 2(b) of the Rules of Court) that notice of the application should be given to the respondent Government and that they should be invited to submit written observations on the admissibility and merits of the case, initially with only the following question:
“Having regard to the scope of the case before the Norwegian Supreme Court (see notably at pp. 4, 9 and 27 of its judgment of 22 August 2001), to the petitions brought by certain parties to the same national proceedings before the United Nations Human Rights Committee in Geneva under the Protocol to the 1966 International Covenant on Civil and Political Rights and without prejudice to any further questions that the Court might wish to put to the respondent Government at a later stage, is the Court prevented from dealing with the present application on the second alternative ground set out in Article 35 § 2(b) of the Convention?”
Article 35 § 2(b) of the Convention reads:
“ The Court shall not deal with any application submitted under Article 34 that
(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”
A. Submissions of the parties
1. The Government
In their observations of 12 March 2003 the Government first invited the Court to declare the application inadmissible in respect of the children as they had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention, and in respect of the Norwegian Humanist Association on the ground that it had not been affected by the impugned measures and, accordingly, could not be viewed as a “victim” within the meaning of Article 34 of the Convention.
As regards the issue of Article 35 § 2(b), the Government submitted that before the domestic courts 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. Despite having pleaded their cases jointly before the domestic courts, the parties had opted to lodge a petition both before the European Court in Strasbourg and the Human Rights Committee in Geneva, respectively on 20 February and 25 March 2002. The complaints made to the respective institutions concerned substantially the same matters, the only difference being the identity of the applicants.
The Government pointed out that it was not clear from the wording of Article 35 § 2(b) whether it was the situation upon the lodging of the application or that upon the examination of admissibility which was decisive. When the application was lodged under the Convention, the same matter had not already been submitted to the Human Rights Committee. On 30 January 2003 the latter had requested the Government to submit their observations on the admissibility and merits of the communication, which they had filed on 21 November 2003. Arguably, therefore, on could consider that “the same matter” had already been submitted to another procedure of international investigation and was being examined under another procedure.
2. The applicants
In response to the above, the Norwegian Humanist Association declared its wish to withdraw its application under the Convention.
However, the applicants requested the Court to dismiss the Government's submission that the children had failed to exhaust domestic remedies. They argued that, had the children taken part in the proceedings before the national courts, they would have been represented by their parents and their claims would in substance have been the same. Had the children also been parties it would have made no difference to the Supreme Court's refusal to uphold the parents' claim for full exemption from the KRL subject. Extensive oral and written evidence about the children's individual experiences with the new subject was presented to the courts by the parents and experts. As the children's claims had been presented to the courts by their parents, the children had no further effective remedy that they could use.
The applicants further disputed that Government's contention that the same matter was being examined under another procedure of international investigation or settlement. Although four other sets of parents had lodged similar complaints to the Human Rights Committee regarding the case of their children, that was not “the same matter” within the meaning of article 35 § 2(b) of the Convention. They argued that, even though the applications concerned the same violation and the national courts had dealt with it as one single case in one judgment, the fact that they had been brought by different individuals meant that it could not be viewed as “the same matter”.
The applicants further submitted that each parents' case had been pleaded separately in the domestic proceedings. Their claims related to separate administrative decisions taken on the respective parties' application for an exemption from the tuition performed by each separate school. The substance of each set of parents' case was submitted to the court, as were the evidence of the exemption procedure, their oral witness statements to the lower courts and written witness statements to the Supreme Court. The Government's submission that no attempt had been made to individualize the cases of the different parties was simply incorrect. The parties gave different statements about their individual cases, their individual experiences and claims. The parents did not even know one another beforehand, though they were members of the Norwegian Humanist Association and shared the same basic view on religion and life stance.
Thus, the applicants maintained that all the cases had been presented individually, although information on general background history, the legal situation and general views on the contents of the new legislation had been presented collectively. The fact that the parents shared opinion on the new subject and the modalities for grants of exemptions therefrom could not disqualify their individual claims for exemption for their children. It was essential that, although presented jointly, their cases and claims were separate. Those parents who had opted to petition the Human Rights Committee had individual cases with different emphasis and arguments. The issues raised before the latter were not the same as those before the Court and related to provisions that were interpreted differently by the Committee and the Court respectively.
Finally, the applicants stressed that, like they had done before the Court, the Government had requested the Human Rights Committee to declare the petitions admissible because the same matter had been submitted to another international body. If both the Human Rights Committee and the Court were to uphold the Government's requests, all of the parents complaints would be declared inadmissible by both organs as being “the same matter”. In order to avoid this unreasonable result, the applicants requested the Court to await the Human Rights Committee's decision on admissibility before deciding on the admissibility of the applicant's complaints under the Convention.
B. Assessment by the Court
1. The Court first notes the declaration made by the Norwegian Humanist Association, in response to the Government's observations, of its wish to withdraw its application under the Convention. Thus the Association does not intend to pursue its application within the meaning of Article 37 § 1 (a) of the Convention. The Court finds no reason within the meaning of the final sentence of Article 37 § 1 which would require it to continue with its examination of the case.
It follows that that, in so far as the Association is concerned, the application should be struck out of the Court's list of cases.
2. As regards the question whether the applicant children had exhausted domestic remedies, the Court notes that they were not formally a party before the national courts and have thus not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. A central part of their application concerns the right to education under Article 2 of Protocol No. 1, which provision lays down different standards, protecting the varying interests of parents and children. The parents, on the one hand, and the children, on the other hand, submitted observations that were, at least in part, separate from one another. The Court finds that the children's complaint in this regard cannot be viewed as identical to that of the parents. It does not consider, therefore, that the children can be exempted from the ordinary requirement to exhaust domestic remedies under Article 35 § 1 of the Convention.
It follows that, in so far as the children are concerned, the application has to be declared inadmissible under Article 35 § 4 of the Convention.
3. The Court moreover observes that, while the applicant parents complain in particular about the absence of a right to full exemption from the KRL subject, they also challenge before the Court the limited possibilities and the modalities for obtaining partial exemption. However, as it appears from the Supreme Courts' judgment, the applicant parents' law suit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally. It found no basis for determining whether the teaching of the plaintiffs' children had occurred in a manner which violated the relevant human rights treaties.
In the light of the foregoing the Court finds that the applicant parents failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in respect of their complaint about the possibilities and modalities for obtaining a partial exemption from the KRL subject.
It follows that also this part of the application has to be declared inadmissible under Article 35 § 4 of the Convention.
4. Turning to the question arising in relation to Article 35 § 2(b) of the Convention, the Court, having reached the conclusions above, considers that the scope of the case before it is limited to the parents' general complaint about the lack of possibility to obtain a full exemption from the KRL subject. However, the Court does not find it necessary at this stage to determine whether the applications submitted by the applicant parents under Article 34 “is substantially the same as a matter that ... has already been submitted to another procedure of international investigation or settlement” within the meaning of Article 35 § 2(b). It adjourns this question for a future examination together with the substance of the applicants' complaints.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in so far as the Norwegian Humanist Association is concerned;
Declares the application inadmissible in so far as the children are concerned;
Declares inadmissible the parents' complaints about the possibilities and modalities for obtaining a partial exemption from the KRL subject;
Decides to adjourn the examination of the remainder of the parents' complaints.