THE FACTS (2)
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(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) see page 96.
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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. The Commission first observes that the applicants' complaint
relates both to 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 observes that similar complaints under Article 2 of Protocol
No. 1 (P1-2) have been raised before it in Application No 5095/71,
introduced against Denmark by Viking and Annemarie Kjeldsen.
The Commission obtained the written and oral observations of the
parties on the admissibility of that application. It was then submitted
on behalf of the respondent Government that the application should be
rejected on the ground that the applicants had failed to exhaust the
domestic remedies available to them under Danish law; alternatively,
that the application should be declared inadmissible as being
incompatible with the provisions of the Convention; and in the further
alternative, that it should be declared inadmissible as being
manifestly ill-founded.
As regards the first ground the respondent Government argued that the
applicants could, under Article 63 of the Danish Constitution have
brought a court action against the Minister of Education claiming that
the Minister be ordered to recognised their right to have their
daughter exempted from obligatory sex education. The Commission found
in its decision on admissibility of 16 December 1972 that, by failing
to bring such court proceedings, the applicants had not complied with
the conditions in Article 26 (Art. 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)
(Art. 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
(Art. 26) of the Convention. The Commission then stated:
"Without in any way prejudicing its final opinion as to the
interpretation of Article 2 of Protocol No. 1 (P1-2), the Commission
is nevertheless fully satisfied that the applicants' complaint cannot
be considered as clearly falling outside the scope of this Article. The
complaint cannot therefore, as submitted by the respondent Government,
be rejected as being incompatible ratione materiae with the provisions
of the Convention. On the contrary, the Commission considers that the
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."
This part of the application was therefore declared admissible.
3. Having regard to the similarity of the issues raised in the
present application and in Application No 5095/71, the Commission has
naturally examined the question of admissibility of the present case
in the light of its above decision of 16 December 1972. The applicants
have confirmed that they have 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
(Art. 26) of the Convention therefore apply to the present case. It
follows that this application must also be declared inadmissible under
Article 27 (3) (Art. 27-3), of the Convention insofar as it relates 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.
4. For the same reasons the present application can 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 decides 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 are 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. In the meanwhile, the Commission
adjourns its examination of this part of the application.
For these reasons, the Commission
1. ADJOURNS ITS EXAMINATION OF 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).
2. DECLARES INADMISSIBLE THE APPLICATION INSOFAR AS IT RELATES TO
THE DIRECTIVES ISSUED AND OTHER ADMINISTRATIVE MEASURES TAKEN BY THE
DANISH AUTHORITIES REGARDING THE MANNER IN WHICH SUCH SEX EDUCATION
SHOULD BE CARRIED OUT.