CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 juin 1993

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 17678/91                       by B.N. and S.N.                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 30 June 1993, the following members being present:                MM.    S. TRECHSEL, President of the Second Chamber                  G. JÖRUNDSSON                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                    Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 11 December 1990 by B.N. and S.N. against Sweden and registered on 16 January 1991 under file No. 17678/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: FACTS         The first and the second applicant are Swedish citizens, born in 1944 and 1954, respectively. They are husband and wife and have been Christian missionaries in various countries. Together they have eight children: A., B., C., D., E., F., G. and H. (born between 1976 and 1984). They reside in Kristianstad in the south of Sweden.         The facts of the case as submitted by the applicants may be summarised as follows.     The particular circumstances of the case         When the applicants' children reached school age the applicants requested to be authorised to educate the children at home. Such authorisation was given regularly by the Municipal School Board (skolstyrelsen) in Kristianstad for the school years 1983/84 to 1987/88. The School Board regularly controlled the education given by the applicants and found it satisfactory.         On 25 April 1988 the applicants anew requested to be authorised to educate their children at home. By decision of 27 June 1988 the School Board granted the request in respect of all children except A., who was to start the sixth form in the 9-year compulsory school (grundskolan). In its decision the Board noted that the applicants had given A. adequate social training and a thorough basis of knowledge. It pointed out, however, that the last three forms of the compulsory school (högstadiet) meant an increasing specialisation of the education and an increasing emphasis on social training. In view hereof and considering the need to give A. time to prepare for this last stage, the Board only authorised the applicants to educate A. at home during the autumn term 1988.         The applicants appealed to the Administrative Court of Appeal (kammarrätten) requesting an oral hearing. However, by decision of 26 September 1989 the Court refused the request finding no need for such a hearing and gave the applicants two weeks to finalise their submissions. After additional written submissions had been filed, the Court decided, on 27 December 1989, to uphold the School Board's decision.         The applicants appealed to the Supreme Administrative Court (regeringsrätten) and were granted leave to appeal. They reiterated their request to be allowed to continue to educate A. in their home. They did not, however, complain about the lower court's refusal to hold an oral hearing. By judgment of 13 June 1990 the Court rejected the appeal. It stated, inter alia:         "It is obvious that home education by the custody holder requires       much as regards the custodian's own knowledge, skills and       capacity to transfer them to his/her child. These requirements       are greater in higher than in lower grades. The fact that no       criticism has been levelled against A.'s hitherto acquired       knowledge does therefore not in itself mean that further home       education is a real alternative to education dispensed in the       last stage of the secondary school. In the present case there is       only vague information as to the [applicants'] educational       qualifications. [The first applicant] has stated that he has       passed various courses with different correspondence institutes       and that he has, as an adult, studied several of the subjects       taught in the upper grades of the secondary school, with emphasis       on mathematics (special course) and also certain upper secondary       school subjects ('gymnasieämnen'). He has held religious offices       in Christian congregations of various communities and he has in       this connection taught different subjects to children of       different ages. For eight years he has conducted theological       studies in Swedish and English. [The second applicant] has stated       that after her marriage with [the first applicant] she resumed       her previously interrupted studies and took a number of upper       secondary school courses of different orientations. In this way       she considers that she has received a good insight in studies       above secondary school level. She finds that her knowledge makes       her well equipped to teach Swedish, different languages and all       scheduled orientation subjects in the forms 7 - 9.         When assessing the question of whether home education for A. can       be an alternative to education in the seventh form of the       secondary school it also has to be borne in mind that [the       applicants] have eight children, of whom, besides A., four are       of school age as from the school year 1989/90, that the family       to a great extent is a self sufficient household and that the       children help with various activities in the home. [Both       applicants] also have certain economical activities, of limited       scope, outside the home.         The above mentioned circumstances make it highly doubtful that       home education can, as far as the seventh form is concerned, give       A. knowledge and skills corresponding to those provided in a       primary and secondary school or in an authorised independent       school.         According to what has been stated in the preparatory works       (Government Bill 1985/86:10, Part A, p. 126) a comparison between       the education provided in the primary and secondary schools and       an education otherwise provided, shall be made on the basis of       all relevant circumstances. The fact that some element may be       missing in the alternative education does not necessarily mean       that the alternative is insufficient.         When making such a comparison major importance has to be attached       to social training which is one of the school's   main purposes -       whether the education is provided in a primary or secondary       school or in an independent school. It is especially important       to promote the pupils' social development in the secondary       school's higher grades. If this is to be achieved through home       education it is necessary to make a number of special       arrangements in order to promote social contacts in various ways.       The information given by the applicants as regards their social       contacts does not provide a sufficient basis for considering that       continued home education can be estimated to meet the other       requirements laid down by the School Act 1985.             Home education of A.N. in the seventh form of the secondary       school can in view of the above not be considered to be a real       alternative to education in a secondary school or in an       independent school."         While their appeals were pending the applicants continued to educate A. in their home.         Subsequently the applicants requested the School Board to be allowed to continue home education of all their children also for the school year 1990/91.         On 26 June 1990 the School Board decided to grant the applicants' request in so far as the children F. (first form), E. (second form), D. (third form) and C. (fifth form) were concerned. The Board rejected the request as regards A. and her sister B. who was now also to start the seventh form.         The applicants appealed to the Administrative Court of Appeal. By judgment of 1 November 1990 the Court rejected the appeal as it found that the case was similar to that already decided by the Supreme Administrative Court.         In the meantime, on 2 October 1990, the School Board decided to order the applicants, at the peril of a money penalty (vite) of 3,000 Swedish kronor for which they were jointly responsible, to send A. and B. to school. The applicants appealed this decision to the Administrative Court of Appeal which, by judgment of 5 December 1990, quashed the School Board's decision on the ground that the imposition of joint liability for money penalties was unlawful.         On 18 December 1990 the School Board decided to order the applicants, at the peril of a money penalty of 1,500 kronor each, to send their two daughters to school.         As the applicants still refused to send B. and A. to school the School Board applied on 30 April 1991 to the County Administrative Court (länsrätten) to have the money penalty enforced.         By judgment of 22 August 1991 the County Administrative Court ordered the applicants to pay 1,500 kronor each in money penalties for their refusal to abide by the School Board's order.         The applicants have at all times continued to educate their children in their home.     Relevant domestic law         Chapter 1, section 1 of the 1985 School Act states that the State provides education for children and young persons in the 9-year compulsory school and in the upper secondary school. The purpose of the education is stated in the second sub-paragraph:         "The general purpose of the education is to give the pupils       knowledge, to develop their skills and to help, in cooperation       with the homes, their development into harmonious persons and       into responsible and good members of society."         Section 2 of the first chapter lays down the duty for children to attend school unless otherwise provided in the subsequent chapters 8 - 10.         Chapter 10, section 4 of the 1985 School Act provides:         "A child of such age as to be under obligation to go to school       shall be allowed to meet this obligation by other means than       those prescribed by this law, if it appears that these other       means constitute a valid alternative to the education otherwise       put at the child's disposal in accordance with the provisions of       this law. Inspection of the alternative activities must be       ensured.         An authorisation may be given for one year at the time. During       its validity the results of the alternative activities shall be       evaluated. The authorisation shall be withdrawn immediately if       necessary inspections are not allowed or if it may be assumed on       other grounds that the authorisation is no longer justified."     COMPLAINTS   1.     The applicants maintain that the requirements of the 1985 School Act and above all that of "social training" violate Article 2 of Protocol No. 1 to the Convention. The refusal of permission to educate their children at home after the sixth form violates their right to ensure an education for their children in conformity with their own religious and philosophical convictions.   2.     The applicants also allege that the refusals to allow continued home education after the sixth form violates Article 9 of the Convention.   3.     Furthermore, they complain of a breach of Article 6 para. 1 of the Convention as a result of the Administrative Court of Appeal's refusal to hold an oral hearing.   4.     Finally, they allege a breach of Article 17 of the Convention.     THE LAW         The applicants allege that the requirements of the 1985 School Act and above all that of "social training" violate Article 2 of Protocol No. 1 (P1-2) to the Convention. The refusal of permission to educate their children at home after the sixth form violates their right to ensure an education for their children in conformity with their own religious and philosophical convictions.         Article 2 of Protocol No 1 (P1-2) provides that :         "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."             The Commission notes that Sweden has made a reservation with regard to the rights guaranteed by Article 2 of Protocol No. 1 (P1-2). It does not, however, feel called upon to consider this reservation in the present case as it has in any event reached the conclusion that the application is inadmissible on other grounds.         The Commission first observes that the applicants' grievances mainly relate to the second sentence of Article 2 (Art. 2). This provision recognises the role of the State in education as well as the rights of parents. It aims at safeguarding pluralism in education, which 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 Eur. Court. H.R., Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, pp. 24-25, para. 50). Even so, the said Article also guarantees the right to start and run private schools (No. 11533/85, Dec. 6.3.87, D.R 51 p. 125).         The second sentence of Article 2 (Art. 2) must however be read together with the first which enshrines the right of everyone to education. It is, as the Court stated in the above case (loc. cit.), on to this fundamental right that is grafted the right of parents to respect for their religious and philosophical convictions.         The right to education by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals (see Eur. Court H.R., Belgian Linguistic judgment of 23 July 1968, Series A no. 6, p. 32, para. 5). It is thus clear that the State has a right to establish compulsory schooling, be it in State schools or private tuition of satisfactory standard, and that verification and enforcement of educational standards are an integral part of that right (see No 10233/83, Dec. 6.3.84, D.R. 37 p. 105).         Furthermore, respect is only due to convictions on the part of the parents which do not conflict with the fundamental right of the child to education, the whole of Article 2 (Art. 2) being dominated by its first sentence (Eur. Court H.R., Campbell and Cosans judgment of 25 February 1982, Series A no. 48, p. 16, para. 36). This means that parents may not refuse the right to education of a child on the basis of their convictions.         The Court has held that the setting and planning of the curriculum fall in principle within the competence of the Contracting States (see the above mentioned Kjeldsen, Busk Madsen and Petersen judgment, p. 26, para. 53).         As regards the complaints raised by the applicants, the Commission must limit its examination to the circumstances of the present case; it cannot review the impugned Swedish legislation in the abstract (see Eur. Court H.R., Olsson judgment of 24 March 1988, Series A, no. 130, p. 28, para. 54).                 The applicants submit that the refusals to allow continued home education were unlawful as a matter of Swedish law. They also claim that the authorities' assessment of their professional qualifications and of their two eldest daughters' need of "social training" was erroneous. In support of the last-mentioned allegations they maintain that they have managed to continue to educate their children after the sixth form with good results and that they do provide ample "social training" for their daughters, albeit within the framework of the local Christian community.         The applicants furthermore maintain that the social training required by the authorities is mainly aimed at destroying their children's Christian faith as it must, as a matter of fact, be provided by the ordinary secularised public schools. This is due to the very limited number of independent and, in particular, Christian schools which are allowed to function in Sweden. The closest Christian school is presently some 100 km away from the applicants' home. The applicants have applied to have their children admitted to this school but their application has been refused as a result of the limited number of places available. The applicants stress that the Swedish situation with respect to private schools is radically different from the liberal Danish situation which the Court, in its Kjeldsen, Busk Madsen and Pedersen judgment (op. cit.), found capable of offering viable private school alternatives to parents not agreeing with the public schools' approach to sexual education.         The Commission first recalls that its power to review compliance with domestic law is limited (see, inter alia, Eur. Court H.R., Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171, p. 16, para. 47). In the present case it has found nothing to support the applicants' allegations that the impugned decisions were contrary to domestic law.         As regards the requirement of social training the Commission observes that this only implies an obligation to go to school with other children in order to learn how to establish social contacts. The Commission finds such an obligation inherent in any system of compulsory schooling and considers that the present obligation does not go outside what is common practice in the Contracting States.         In addition, the Commission is satisfied that the Swedish authorities acted within their margin of appreciation under Article 2 of Protocol No. 1 (P1-2) when assessing the applicants' possibilities of offering a valid alternative to the public schooling of A. and B. and when finding that the applicants' professional qualifications were open to doubt.         The Commission considers that, in the circumstances of the present case, A.'s and B.'s right to education must prevail over the parents' right to respect for their religious and philosophical convictions. It also finds that the means employed to attempt to compel the applicants to abide by the decisions of the administrative courts have not been disproportionate to the aim pursued.         It follows that there is no appearance of a violation of the applicants' rights under Article 2 of Protocol No. 1 (P1-2).   This complaint is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicants also complain that the refusal to allow them to educate their children in accordance with their religious and philosophical convictions amounts to a violation of their own freedom of thought, conscience and religion, as guaranteed by Article 9 (Art. 9) of the Convention.         The Commission, even assuming that the decisions concerning the school education of A. and B. interfered with the applicants' rights under Article 9 (Art. 9) of the Convention, finds that such an interference would for the reasons outlined under 1. above be justified under Article 9 para. 2 (Art. 9-2) as being provided for by law and necessary in a democratic society for the purpose of protecting the children's right to education.          Therefore, this part of the application is likewise manifestly ill-founded.   3.     The applicants also allege a violation of Article 6 (Art. 6) of the Convention in that they were refused an oral hearing before the Administrative Court of Appeal.         The Commission notes, however, that the applicants did not complain of this refusal to the Supreme Administrative Court. It follows that the applicants have not exhausted domestic remedies on this point as prescribed in Article 26 (Art. 26) and that this part of the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   4.     The applicants finally allege a violation of Article 17 (Art. 17) of the Convention. However, the Commission finds no issue under this Article.         For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber        President of the Second Chamber             (K. ROGGE)                            (S. TRECHSEL)