CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 février 2013

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s8FA53EDF { margin-top:6pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC769D9E0 { margin-top:42pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } THIRD SECTION Application no. 46167/09 Florin JULA against Romania lodged on 9 June 2009 STATEMENT OF FACTS The applicant, Mr Florin Jula, is a Romanian national who lives in Oradea. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant has two underage children who attend a State school in their hometown. The family belongs to the Eastern Catholic Church (“the Greek Catholic Church”) and on that ground the applicant’s children do not wish to participate in the Orthodox religion classes in school. They requested that Greek Catholic religious education be organised in school. Their request was rejected as there were not enough children to constitute a class. According to the applicant, the non-Orthodox children may either attend the Orthodox religious education or chose to leave the classroom when religion classes take place. In the latter case, they are not taken care of by the school. On 8 August 2007 the applicant lodged a complaint with the National Council against Discrimination (“the Council”), against the Ministry of Education and the Ministry of Culture and Cults, arguing that the Greek Catholic children are discriminated against as their constitutional right to religious education is not ensured in the same manner as that of the Orthodox children. On 20 December 2007 the Council dismissed the complaint. It found that the situation described by the applicant did not constitute discrimination insofar as any religion, including the Orthodox, would be treated similarly if the number of pupils required by law to constitute a class was insufficient. On 25 February 2008 the applicant lodged an objection to the Council’s decision. He reiterated that Greek Catholic children were discriminated against. He argued, among others, that the alleged lack of sufficient number of pupils for constituting minority religion classes was a widespread problem which the authorities had legal means to circumvent, if they wished so. He reiterated that children in that situation had to join the Orthodox religion classes or leave the class room and wait on the school corridors or simply leave the school building. On 19 May 2008 the Oradea Court of Appeal found in favour of the applicant. It noted that religious education was guaranteed by the Constitution and considered that any restriction of this right on grounds such as insufficient number of pupils or lack of funds constituted discrimination which the authorities could not objectively justify. The Council and the Minister of Education appealed against the judgment rendered by the Court of Appeal. In a final decision of 10   December 2008, the High Court of Cassation and Justice reversed that judgment and found that there had been no discrimination in the case as the provisions of law concerning the minimum number of pupils applied equally to all religions. It also noted that even if religious education was not provided by the school, pupils could still benefit from it within their respective churches and that teaching would be recognised by schools. B.     Relevant domestic law Article 32 § 7 of the Constitution provides that: “In State schools religious education is organised and guaranteed by law.” Article 32 § 1 of Law no. 489/2006 on freedom of religions provides that: “On request, if the school cannot ensure presence of teachers of a certain religion, pupils belonging to that religion may bring proof from their church of studying their religion within that church.” Article 158 of Law no. 84/2006 on education provides as follows: “1)     In the secondary education system, the study formations consist of groups, classes or study years, as follows: a)     a group consists of an average of 15 pre-school pupils or school pupils, but no less than 10 or more than 20; exceptionally, the School Inspection may approve groups of no less than 7 children; b)     a class in primary school has on average 20 pupils, but not less than 10 or more than 25; c)     a class in the secondary school has on average 25 pupils, bur not less than 10 or more than 30; d)     a ... high school class has on average 25 pupils, but not less than 15 or more than 30. 2)     The special situations concerning the study formations of less than the minimum number of pupils... shall be approved by the Ministry of Education.” Law no. 84/2006 has been replaced by Law no. 1/2011 which has a similar provision in its Article 63. C.     Findings by ECRI The European Commission against Racism and Intolerance (ECRI) found in 2006, in its second Country Report on Romania, that although it does not have the status of a state religion, the Orthodox Church, which is the majority religion, holds a dominant position in Romanian society with great influence on the political bodies and consequently withholding benefits that other Churches do not get from the state. It also noted that: “16. ECRI also notes with concern reports that members of the Orthodox Church were engaging in all manner of harassment against followers of the Greek Catholic Church with a certain degree of complacency from the authorities. ECRI has also been informed that although religious education is not compulsory in Romania, there are cases in some state schools where pupils receive religious instruction against their parents’ will.” COMPLAINT The applicant complains under Articles 9 and 14 of the Convention and Article 2 of Protocol No. 1 to the Convention about the denial of religious education to children belonging to the Greek Catholic church, including his own children. In particular he points out that they should benefit from religious education in the school itself, and not be forced to leave the classroom when their classmates receive Orthodox instruction or join the majority religion’s classes. QUESTIONS TO THE PARTIES 1.     What do children whose religion is not taught in school do during the time when their schoolmates attend religion classes? In particular, does the school provide for alternative activities for them? Are these children allowed to leave the school premises on their own, during the religion classes?   2.     Do the parents have a choice in the manner in which the children spend their time when their schoolmates attend religion classes?   3.     If so, has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, did he have at his disposal effective means of requesting that the school provide alternative care for his children during the time when his classmates attended religious education?   4.     Have the applicant’s children’s right to education, guaranteed by Article 2 of Protocol No. 1, been breached, in particular with regard to the manner in which the authorities organised the religious education? 5.     In the light of the findings by ECRI, does the applicant have a real choice, on behalf of his children, of not attending Orthodox religion classes, while nevertheless remaining under the care of the school? In particular, how does the inscription for religion classes occur in schools? How is the parents’ consent sought?