CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 juillet 1974

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   The facts of the case, as submitted by the applicants, may be summarised as follows:   The applicants, who are husband and wife, are Danish citizens living in Ålborg. Mr Pedersen was born in 1930 and is a parson. Mrs Pedersen was born in 1932 and is a school teacher by training. They have five children, three of whom are of school age. Two of the children now attend private schools while one of them attends the municipal school of Poul Paghs Gade in Ålborg. The eldest child moved from that school to a private boarding school in 1972.   The applicants' first submission, dated 7 October 1972,   was submitted jointly with Mr and Mrs Arne Busk Madsen whose application has been registered separately under Application No. 5920/72.   In their application form the applicants refer to the legislation which provides for compulsory sex education integrated with the teaching of other subjects in Danish schools (2). They state that they want this law amended in such a way that sex education is taught as a special subject and that attendance of such lessons becomes voluntary, or that sex education is given as part of the subject of "family knowledge".   ------------------------- (1)   A similar decision was taken the same day by the Commission on the admissibility of Application No 5920/72, Arne and Inger Busk Madsen against Denmark.   (2)   In a letter dated 2 April 1973 the applicants have specified that the law concerned is the Act of 27 May 1970 to amend the Act relating to Public Schools (lov om aendring af lov om folkeskolen). ------------------------- The applicants maintain that the present system constitutes a violation of the State's obligation under Article 2 of Protocol No. 1 to respect the right of parents to ensure education and teaching in conformity with their own religious beliefs.   In their above-mentioned submission of 7 October 1972, the applicants state that, since the entry into force of the legislation providing for compulsory sex instruction integrated with the teaching of other subjects in the publicly maintained schools, there has been a strong opposition against this gross interference   with the right of the home. This enables the educationalist, against the will of the parents, to interfere with the private life of the family. However, the respondent Government have not been prepared to make any concessions.   The applicants first point out that they do not claim to have a monopoly with regard to their children which is borne out by the fact that their children attend public schools but they do, however, claim that, when Article 26 of the Universal Declaration of Human Rights and Fundamental Freedoms gives the parents a prior right to choose the kind of education given to their children, this means that the State is not allowed to take the place of the parents with regard to views on life.   The applicants also refer to a circular issued by the Minister of Education (on 15 June 1972) according to which greater emphasis is placed on imparting factual information. They maintain, however, that a teacher cannot teach these matters objectively since his ethical views necessarily influence the instruction. Under the new rules, it is even possible to use photographs showing erotic situations without the parents having a right to have their children exempted. A difference of opinion expressed by the parents and the teacher on these matters may put the child into a difficult situation and such a conflict may destroy the child's views on love life.   In this connection, the applicants object to the selection of books made by the School Board for the use in   the Poul Paghs Gade School in Ålborg, in particular two specific books whose attitude to ethics is in conflict with the views encouraged in the applicants' homes.   The applicants further complain that sex education begins too early. Under the law it is possible to start such instruction as early as the first school year. They also alleged that, as a result of being the only subject possible of integration into the teaching of other subjects, sex education is given an unnaturally special position. This also makes it possible to "overdose" the subject. The applicants would be prepared to accept the instruction if it were given as part of the teaching of "family knowledge", if this were optional from the first school year. The Danish authorities have, however, rejected this proposal.   According to the applicants the compulsory, integrated sex education in the public schools, leaves the door open for a one-sided tyranny in the schools. Progressive teachers may rely on the Act in order to give instruction of a kind objected to by the parents.   The applicants also refer to a statement by the Minister of Education in reply to a petition signed by about 36,500 persons requesting that sex education should be voluntary. The Minister apparently suggested that private schools should be set up but this idea is rejected by the applicants because of the costs and inconvenience involved. Moreover, in their views private schools tend to create inequality within the local community.   The applicants emphasise that they are not opposed to the children being given a regular answer on their questions when these arise naturally. They oppose, however, extensive instruction which allows for the indoctrination with ethical views to which many parents object.   In their submission of 7 October 1972 reference is made to a complaint made, in March 1972, by the present applicants and certain other parents concerning the use of certain books on sex educational the Poul Paghs Gade School in Ålborg. These books have apparently been approved by the local School Board in consultation with the teachers at the school. After certain further correspondence the Education and Culture Committee of the Northern Jutland County Council (Nordjyllands amtsråds undervisnings - og kulturudvalg) decided, on 16 June 1972, to uphold the School Board's decision concerning teaching aids for sex education at the school. In particular, the Committee took into account that one of the books complained of should only be used by the teacher and that a section of the book dealing with the technique of coitus should not be mentioned by the teacher in the class. This decision was confirmed by the Minister of Education on 13 March 1973. In a long letter of the same date the Minister himself explained to the applicants the historical background to the legislation and the Executive Order and Circular concerning sex education issued by the Ministry on 15 June 1972 and replied to certain further questions raised by the applicants in their correspondence.   Under cover of a letter dated 22 March 1972 the Commission's Secretary sent the applicants a copy of the Commission's decision of 16 December 1972 on the admissibility of the Kjeldsen case (Application No 5095/71). The Secretary asked whether the applicants had brought any court proceedings under Article 63 of the Danish Constitution in order to exhaust the domestic remedies available to them. He also asked the applicants to state whether they wished to maintain their application.   In a letter, dated 2 April 1973, the applicants confirmed that they maintained their application. They also confirmed that they had not brought any proceedings under Article 63 of the Constitution but pointed out that they had duly appealed to the Minister of Education in accordance with the relevant statutory provisions governing complaints against decisions by the municipal school authorities.   In their application form the applicants referred to the Kjeldsen case and suggested that their application should be treated as an "enclosure" to that case.   PROCEEDINGS   The application was introduced with the Commission on 7 October 1972 and registered on 20 November 1972. It was examined by a group of three members of the Commission on 24 May 1973. The Commission considered the group's report on 29 May 1973 and took a partial decision on the admissibility of the application. (1) ----------------- (1)   See page 93. ----------------- The Commission first observed that the applicants' complaint under Article 2 of Protocol No. 1 related both the Act of 27 May 1970, which laid down the principle of compulsory sex education and authorised the Minister of Education to issue regulations as to how this instruction should be given, and also to the directives issued and other administrative measures taken by the Danish authorities regarding the manner in which such education should be given including the use of certain textbooks. The Commission further observed that similar complaints under Article 2 of Protocol No. 1 have been raised before it in Application No 5095/71 introduced against Denmark by Viking and Annemarie Kjeldsen. It then recalled the terms   of its decision of 16 December 1972 declaring part of that application admissible. However, the Commission found that, by failing to bring court proceedings under Article 63 of the Danish Constitution, the applicants had not complied with the condition in Article 26 of the Convention as to the exhaustion of domestic remedies, insofar as their "application relates to the directives issued by the Minister of Education and other administrative authorities regarding the manner in which the sex education referred to in the 1970 Act should be carried out". This part of the application was therefore rejected under Article 27 (3), of the Convention. On the other hand, the Commission concluded that there was no effective domestic remedy available with regard to the provisions of the 1970 Act embodying the principle of compulsory sex education. It followed that, in this respect, the application could not be rejected as inadmissible under Article 26 of the Convention. The Commission then stated that the complaint raised important and complex issues under Article 2 of Protocol No. 1 whose determination should depend on an examination of the merits of the case.   The Commission continued by stating that, having regard to the similarity of the issues raised in the present application and in Application No 5095/71, it had naturally examined the question of the admissibility of the present case in the light of its above decision of 16 December 1972. The Commission pointed out that the applicants had confirmed that they had not brought any proceedings under Article 63 of the Danish Constitution in respect of their present complaints. The Commission's findings in the decision of 16 December 1972 as regards the application of the domestic remedies' rule in Article 26 of the Convention therefore applied to the present case. It followed that this application must also be declared inadmissible under Article 27 (3), of the Convention insofar as it related to the directives issued and other administrative measures taken by the Danish authorities regarding the manner in which the sex education referred to in the 1970 Act should be carried out.   The Commission went on to say that, for the same reasons, the present application   could apparently not be rejected as inadmissible under Article 26 of the Convention or on any other ground, insofar as the applicants complain that the Act of 27 May 1970 providing for obligatory sex education in the public schools constitutes a violation of Article 2 of Protocol No.1. The Commission therefore decided to give notice, in accordance with Rule 45, 3 b) of the Commission's Rules of Procedure, of this part of the application to the respondent Government and to invite the Government to state whether, in view of the similarity between the issues raised in the present case and in Application No 5095/71, they were prepared to waive their right to submit observations in writing on the admissibility issue and to accept that the applications be declared admissible without oral explanations being given by the parties at a hearing. In the meanwhile, the Commission adjourned its examination of this part of the application.   In a separate decision, also dated 29 May 1973, the Commission adopted the same procedure with regard to the application introduced by Mr and Mrs Arne Busk Madsen (No 5920/72).   The Agent of the respondent Government replied in a letter of 27 June 1973 that his Government were prepared to waive their right to submit observations in writing on the admissibility issue and to accept that both applications be declared admissible without oral explanations being given by the parties at a hearing.   The applicants, who had been informed of the Commission's decision of 29 May 1973, did not make any comments on the procedure suggested by the Commission.   THE LAW   1.    The applicants have complained that the system of compulsory sex education in Danish public schools violates Article 2 of Protocol No. 1 (P1-2) which provides that "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.    In its partial decision of 29 May 1973 on the admissibility of the application the Commission referred to the similarity between the issues raised in the present case and Application No 5095/71 (Kjeldsen v. Denmark) which was declared partly admissible on 16 December 1972. The Commission observed that, for the same reasons indicated in that decision, the present application could apparently not be rejected as inadmissible under Article 26 (Art. 26) of the Convention or on any other ground, insofar as the applicants complain that the Act of 27 May 1970, providing for obligatory sex education in the public schools, constitutes a violation of Article 2 of Protocol No. 1 (P1-2). The Commission therefore decided to give notice, in accordance with Rule 45, 3 b) of the Commission's Rules of Procedure, of this part of the application to the respondent Government and to invite the Government to state whether, in view of the similarity between the issues raised in the present case and in Application No 5095/71, they were prepared to waive their right to submit observations in writing on the admissibility issue and to accept that the application be declared admissible without oral explanations being given by the parties at a hearing.   3.    In a letter dated 27 June 1973 the respondent Government replied that they were prepared to accept that the application was declared admissible without the Government having made further written or oral submissions as to the admissibility of the case. The applicants were informed of the Government's position but made no comments.   4.    Having noted the respondent Government's statement the Commission now confirms that the reasons given by it for declaring Application No 5095/71 partly admissible apply with equal force to the corresponding part of the present application.   In particular, the Commission recalls its findings in the above mentioned decision of 16 December 1972 that the applicants' complaint "raises important and complex issues under Article 2 of Protocol No. 1 (P1-2) whose determination should depend on an examination of the merits of the case."   For these reasons, the Commission   DECLARES ADMISSIBLE THE APPLICATION INSOFAR AS THE APPLICANTS COMPLAIN THAT THE ACT OF 27 MAY 1970 PROVIDING FOR OBLIGATORY SEX EDUCATION IN THE PUBLIC SCHOOLS CONSTITUTES A VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2).