Whereas the bulk of Article 2 Protocol i cases concerns aspects of the public-school framework and curriculum, this article explores Convention rights in the realm of denominational schooling. It is outlined that the jurisprudence of the Strasbourg Court generally strongly supports the rights of parents not to send their child to state-organized schools and hence to establish or avail of private, denominational schooling instead. In this area of private schooling, the Strasbourg Court could build a stronger body of jurisprudence against discriminatory funding policies. The Court is right in seeing no state duty to fund denominational schools, but where intricate funding policies serve to privilege the state or dominant religion and their schools, at the disadvantage of minority religion schools, the Court should come into action.
Article 2 of Protocol i (
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 religions and philosophical convictions.
Generally speaking, the clause aims, in the words of the ECtHR expressed in an early landmark case, ‘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’.3 More specifically, the European Court of Human Rights (ECtHR, the Strasbourg Court, the Court) has underscored that ‘[t]he State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions’.4
In the light of these general contours of
This short article will exclusively focus on the latter—possibly least explored—issue of denominational education, while an attempt at exhaustively analysing and appraising the case-law on questions (i) and (ii), pluralistic state school teaching and exemptions to confessional teaching (in public school settings) respectively, is reserved for a separate article.8
2 The Right to Establish/Opt for Denominational Schools
That said, the duties of the state are far more modest within the private educational realm. After all,
Accordingly, one way to visualise the position of
Since the exact language of
Notwithstanding such exceptions, parental rights to establish schools outside the public framework—precisely by way of residually protecting
The burden to actually organize and operate such alternative education lies on private individuals and not on the state. It was established early on in the jurisprudence of the Strasbourg Court, in the landmark Belgian Linguistics Case, that an individual cannot ‘draw from [
In a case concerning the Church of Scientology, it was moreover held that the state is not even obliged, under
But also in many other ways it can be said that this right not to opt for state schooling and hence to have one’s children schooled at a private, e.g. denominational school, is not an absolute entitlement. In Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, the former Commission held that ‘such a right cannot be a right without conditions. It must be subject to regulation by the State in order to ensure a proper educational system as a whole’.25 The European Commission of Human Rights decided that the Swedish educational authorities’ refusal to grant a denominational school permission to teach the upper stage classes (while granting such permission to teach the lower stage classes) was objective and reasonable since that decision was purely based on such quality regulations which are legitimately monitored by the state even where and when they affect the private sector (in this particular case, some of the school’s teachers lacked the formal competences to teach the upper classes).
In a number of cases, compelling reasons were found by the Strasbourg Court that justified state interferes with parental choices made in this context. For instance, the applicant in Graeme v. United Kingdom complained that her son was not educated in a private, denominational school of her choice, claiming a
Be that as it may, while in the latter case it was, to a significant extent, health reasons that trumped parental religious rights, in Eriksson v. Sweden the lack of guardianship per se made this
By contrast, the Strasbourg Court did pronounce a breach of religious rights in for instance the case of Biblical Centre of the Chuvash Republic v. Russia.34 This organisation of Evangelical Christians had founded a Biblical College as well as a Sunday School.35 While the organisation was in existence for more than 15 years, and while these schools had been operating without interruption for more than 11 years, the umbrella organisation of the Biblical Centre was forcefully dissolved following certain health and safety inspections at the schools. The Strasbourg Court finds fault with virtually every aspect of this ‘harsh measure’.36 First and foremost, the measure was neither necessary nor proportionate: the Russian Government admitted that the health and safety violations detected were technical and minor and could easily have been remedied if the Centre would have been given time. However, such time was not granted since the Biblical Centre was dissolved almost immediately. The ECtHR furthermore detects much uncertainty in the domestic Russian jurisprudence on this type of church-run schools, which occasionally must be state-licensed under the Russian education laws and occasionally not. While in the present case apparently a license was required even for the Sunday School, the Strasbourg Court tracked down a case before the Russian Supreme Court, sitting in a formation which included two out of the three judges who approved in the present case the dissolution of the Biblical Centre, in which it held that teaching religion in this type of Sunday school-construction fell outside the scope of the Russian Education Act and was hence not subject to state-licensing.37 From other aspects of the domestic prosecutorial and judicial proceedings, too, the Strasbourg Court goes as far as stating that the ‘domestic authorities revealed their determination in seeking to put an end to the applicant organisation’s existence’.38 The Strasbourg Court determined, accordingly, a violation of Article 9 interpreted in the light of Article 11 (freedom of association).
In addition to judgements on the precise scope of rights to establish private educational facilities, another bone of contention has proven to be state funding of such facilities and especially the lack thereof. While
In the Belgian Linguistics Case, the ECtHR affirmed that no duty can be inferred from the Convention for states to subsidize private education,42 something reiterated in other cases.43 This interpretation is certainly not out of line with other international monitoring bodies, for instance the
While the Strasbourg Court on paper makes use of comparable tests of “reasonableness” and “objectivity” when assessing distinctive treatment in the area of state funding for schools, it appears that the Strasbourg watchdog is rather less strict in this regard than its
Similarly, when a private school based on a non-religious yet special didactical concept (Schülerschule) challenged before the European Commission of Human Rights Austria’s state funding system, with which Austria funds “church schools” (which in practise means that more than 90% of the state-funded denominational schools are run by the Roman Catholic Church), its complaint was deemed ill-founded.48 More particularly, the Commission found it objective and reasonable that under its Private School Act of 1964 the state grants subsidies to private schools if such a school ‘corresponds to a need of the community’.49 While on its face this seems an objective enough criterion, the manner in which it is interpreted by the Commission in this case illustrates perfectly how such an open-ended caveat may foster arbitrary distinctions made between different conceptions of the good: ‘The Commission draws … the conclusion that to treat church schools … differently from the applicant association’s school … is a matter which can be justified in terms of Article 14 (Art. 14) of the Convention because the church schools are so widespread that if the educational services which they provide fell to be met by the State, there would be a considerable burden on the State as it would have to make up the shortfall in schools’.50 This strikes as a weak reasoning. As long as the state funds one religious denomination at the exclusion of others to run schools, it is the state which makes itself dependable upon that church (here the Roman Catholic Church), but such a pact between the state and the predominant church hardly makes it justified to structurally reject the entry into the private educational sector by other potential players.
The jurisprudence of the Strasbourg Court has generally strongly supported parental rights not to send their child to state-organized schools and to establish or avail of private, denominational schooling instead. In this area of private schooling, the Strasbourg Court could build a stronger body of jurisprudence against discriminatory funding policies. The Court is right in seeing no state duty to fund denominational schools, but where intricate funding policies serve to privilege the state or dominant religion and their schools, at the disadvantage of minority religion schools, the Court should come into action.
Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms,
European Court of Human Rights, Kjeldsen, Busk Madsen and Pedersen v. Denmark, Application Nos. 5095/71; 5920/72; 5926/72, judgment of 7 December 1976, para. 50.
Kjeldsen, Busk Madsen and Pedersen v. Denmark, para. 53.
As held in the landmark case of Kjeldsen, Busk Madsen and Pedersen v. Denmark, para. 53; and reiterated since, e.g. in Folgerø and Others v. Norway, Application No. 15472/02, Grand Chamber judgement of 29 June 2007, para. 84(h).
Folgerø and Others v. Norway, para. 84(c): ‘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’.
Kjeldsen, Busk Madsen and Pedersen v. Denmark, para. 53; Folgerø and Others v. Norway, para. 84(g).
The latter, comprehensive article on freedom of religion or belief and education under Protocol i is forthcoming in a book edited by Jeremy Gunn, Jeroen Temperman, and Sir Malcolm Evans (Brill, 2018, forthcoming).
It should be noted at the outset that not each and every of the below discussed cases was dealt with by the Strasbourg Court under
Folgerø and Others v. Norway, para. 84 (paraphrasing similar language in the early judgment of Kjeldsen, Busk Madsen and Pedersen, para. 50. See also e.g. Hasan and Eylem Zengin v. Turkey, Application No. 1448/04, judgement of 9 October 2008, para. 48.).
Ibid., same paragraph numbers.
Ibid., same paragraph numbers.
See Kjeldsen, Busk Madsen and Pedersen, para. 50.
Declaration contained in the instrument of ratification, deposited on 25 February 1953.
Reservation contained in the instrument of ratification, deposited on 10 April 1997, which reads: ‘the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions cannot be realised through primary private education, in the Republic of Macedonia.’
Constitution of Macedonia, Article 45.
Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, Application No. 11533/85, admissibility decision of the European Commission of Human Rights of 6 March 1987, at ‘The Law’.
See e.g. Kjeldsen, Busk Madsen and Pedersen v. Denmark, para. 54; Jiménez Alonso and Jiménez Merino v. Spain, Application No. 51188/99, admissibility decision of 25 May 2000, para. 1 of ‘The Law’; and W. and D.M., M. and H.I. v. United Kingdom, Application Nos. 10228/82 and 10229/82, admissibility decision by the European Commission of Human Rights of 6 March 1984, at ‘The Law’.
See Article 13, paras. 3 and 4 of the
Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, Application Nos. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, judgement of 23 July 1968, at section B, para. 9.
C. of S. of C. v. the United Kingdom, Application No. 3798/68, admissibility decision of the European Commission of Human Rights of 17 December 1968.
European Court of Human Rights, Konrad and Others v. Germany, Application No. 35504/03, judgement of 11 September 2006.
Konrad and Others v. Germany, at ‘The Law’.
E.g. B.N. and S.N. v. Sweden, Application No. 17678/91, admissibility decision of the European Commission of Human Rights of 30 June 1993; and Family H. v. United Kingdom, Application No. 10233.83, admissibility decision of the European Commission of Human Rights of 6 March 1984.
See also Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, at ‘The Law’.
Graeme v. United Kingdom, Application No. 13887/88, admissibility decision of 5 February 1990.
Graeme v. United Kingdom, at ‘The Facts’.
Graeme v. United Kingdom, at ‘The Law’.
Graeme v. United Kingdom, ‘The Law’.
Cecilia and Lisa Eriksson v. Sweden, Application No. 11373/85, decision of the European Commission of Human Rights of 14 July 1988.
Cecilia and Lisa Eriksson v. Sweden, para. 16.
Cecilia and Lisa Eriksson v. Sweden, para. 104.
Cecilia and Lisa Eriksson v. Sweden, paras. 225–226.
Biblical Centre of the Chuvash Republic v. Russia, Application No. 33203/08, judgement of 12 June 2014.
As this case goes beyond the realm of formal education it is hence chiefly assessed by the Court through the lens of Article 9.
Biblical Centre of the Chuvash Republic v. Russia, para. 54.
Biblical Centre of the Chuvash Republic v. Russia, para. 56.
Biblical Centre of the Chuvash Republic v. Russia, para. 57.
To that effect, see declarations/reservations by Azerbaijan, Bulgaria, Georgia, Germany, Moldova, and Romania.
Declaration contained in a letter from the Permanent Representative of the Netherlands, dated 29 November 1955, handed to the Secretary General at the time of deposit of the instrument of ratification, on 31 August 1954.
Article 23, para. 7, of the Constitution of the Kingdom of The Netherlands.
Belgian Linguistics Case, at Section B (‘Interpretation adopted by the Court), stating that there is no obligation ‘to establish at their own expense, or to subsidise, education of any particular type or at any particular level.’
E.g. X. v. United Kingdom, Application No. 7782/77, admissibility decision of the European Commission of Human Rights of 2 May 1978, at ‘The Law’: ‘there is no positive obligation on the State, in relation to the second sentence of Article 2, to subsidise any particular form of education in order to respect the religious and philosophical beliefs of parents.’ See also W. and D.M., M. and H.I. v. United Kingdom, at ‘The Law’, for a similar formulation.
Waldman v. Canada, Communication No. 694/1996, Views of the Human Rights Committee adopted on 5 November 1999, para. 10.6.
X. v. United Kingdom, Application No. 7782/77, admissibility decision of the European Commission of Human Rights of 2 May 1978, at ‘The Law’.
X. v. United Kingdom, at ‘Summary of the facts’.
Verein Gemeinsam Lernen v. Austria, Application No. 23419/94, admissibility decision of the European Commission of Human Rights of 6 September 1995.
Private School Act of 1964, Section 21(a).
Verein Gemeinsam Lernen v. Austria, at ‘The Law’.