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)
Full & Egal Universal Law Academy