THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 15472/02
by Ingebjørg FOLGERØ and Others
against Norway
The European Court of Human Rights (Third Section), sitting on 26 October 2004 as a Chamber composed of:
MrG. Ress, President,
MrL. Caflisch,
MrR. Türmen,
MrB. Zupančič,
MrsH.S. Greve,
MrK. Traja,
MrsA. 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 FACTS
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.
2. Reform
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
