AS TO THE ADMISSIBILITY OF
Application No. 11533/85
by the Ingrid Jordebo FOUNDATION of Christian Schools
and Ingrid JORDEBO
against Sweden
The European Commission of Human Rights sitting in private
on 6 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H. C. KRUGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 May 1985
by the Ingrid Jordebo Foundation of Christian Schools and Ingrid
Jordebo against Sweden and registered on 7 May 1985 under file
No. 11533/85;
Having regard to
- the first report provided for in Rule 40 of the Rules of
Procedure of the Commission;
- the Commission's decision of 4 December 1985 to invite the
Government to present written observations on the
admissibility and merits of the application;
- the Government's observations dated 13 May 1986 and the
applicants' reply dated 6 August 1986;
- the Commission's decision of 18 May 1986 to grant legal aid
to Mrs. Jordebo;
- the second report provided for in Rule 40 of the Rules of
Procedure;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case may be summarised as follows.
The applicants are the Ingrid Jordebo Foundation of Christian
Schools and Ingrid Jordebo, a Swedish citizen born in 1930 and
resident at Jönköping. Mrs Jordebo is the headmistress of the Anna
School which she runs through the Foundation. Mrs Jordebo represents
the Foundation before the Commission.
The Anna School was started in 1976. It is the only
non-public school for pupils of compulsory school age (7 - 16 years)
at Jönköping. The State-municipal public school is run by the School
Board (skolstyrelsen) of Jönköping.
In the school year 1982/83 there were classes 1 to 6 (low and
middle stage) at the Anna School. In addition, class 7 was run on a
trial basis after the approval of the School Board.
In the school year 1983/84, the Foundation applied for
permission to run classes 1 to 6 and 7 to 9 (upper stage).
On 21 June 1983 the School Board of Jönköping granted
permission for classes 1 to 6 and refused permission for classes 7 to
9. The Foundation then made a new application for classes 7 to 9,
which was rejected by the School Board on 23 August 1983. It appears
from the decision that it was calculated that three pupils would
attend the seventh form, and two pupils the eighth form. None of the
proposed teachers had formal competence to teach in the seventh and
eighth forms, and only Mrs Jordebo had formal competence as a
teacher, but only for the middle stage.
The Foundation appealed to the National School Board
(skolöverstyrelsen) which on 18 April 1984 rejected the appeal for
the following reasons:
"According to Section 34 of the School Act (skollagen) an
independent school should be approved for fulfilment of the
school duty provided that the education at the school gives
knowledge and skill which as regards their nature and level
essentially correspond to the knowledge and skill given by
the public school, and the school otherwise corresponds to
the general objectives of the public school.
The approval should be revoked when the school no longer
satisfies these conditions and the deficiencies cannot be
removed after contact with the principal.
The Anna School does not have State regulated posts and
formal competence of the teachers cannot therefore be
required. Of course, this does not mean that one could
disregard the requirement as to the quality of the education.
Both the School Board and the County School Council
(länsskolnämnden) have found that the upper stage
education which is run at the Anna School does not give
knowledge and skill of a nature and level which essentially
correspond to the knowledge and skill given by a public
school.
The National School Board rejects the appeal."
The Foundation appealed to the Government (the Ministry of
Education), which on 13 December 1984 rejected the appeal.
While the case was pending before the Government, the
Foundation carried out teaching for classes 7 and 8 of the school year
1983/84.
Mrs Jordebo has a daughter born in 1969, who if possible would
have attended the eighth form.
COMPLAINTS
1. The applicants submit that only by taking part in the
teaching of the seventh and eighth forms at the Anna School would it
be possible for Mrs Jordebo's daughter to receive teaching in
conformity with Mrs Jordebo's religious belief. Accordingly, the
applicants allege a violation of Article 2 of Protocol No. 1.
2. The applicants submit that it is a "civil right" to run school
activities in accordance with Section 34 of the School Act. It is
alleged that Article 6 of the Convention has been violated since this
"right" could not be examined by a court.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 May 1985 and registered
on 7 May 1985.
On 4 December 1985 the Commission decided to invite the
Government to present written observations on the admissibility and
merits of the application, in particular the complaint under Article 6
of the Convention.
The Government's observations were received by a letter dated
13 May 1986 and the applicant's observations in reply were received by
a letter of 6 August 1986.
Legal aid was granted to Mrs Jordebo on 18 May 1986.
SUBMISSIONS OF THE PARTIES
A. The Government
1. Swedish Legislation Concerning Compulsory School Education
The Swedish school system is regulated by the 1962 School Act
and the 1971 School Decree (skolförordningen). The Act and the Decree
are supplemented by the 1980 Compulsory School Curriculum (läroplan
för grundskolan), issued by the Government on the basis of guidelines
laid down by the Riksdag.
The basic education, aimed at children of an approximate age
of 7 - 16 years, is according to Section 30 of the Act compulsory.
This compulsory, basic education is a significant element in meeting
the overriding responsibility of the society of educating and teaching
children and young people. As summarised in a recent Government Bill,
the goals of this part of the children's education are to give them
the basic knowledge and skills in a broad sense which are necessary
for their participation in the life of the community and, thus, to
prepare them for entering the working life or higher education
(Government Bill 1982/83:1, p. 14).
According to Sections 23 and 28 of the Act, every child has a
right to receive, free of charge, this basic education at a public
school. The following two excerpts from the introductory part of the
Compulsory School Curriculum give a basic idea of the general goals of
public sector school education and also indicate some of the
particular issues, a basic knowledge and understanding of which are
deemed essential to each individual in an enlightened and democratic
society (pages 13 and 15):
"Compulsory school is part of society. The curriculum
reflects a democratic view of society and its members, the
implication being that human beings are active and creative
and that they both can and must assume responsibility and
seek knowledge in order to co-operate with others in
understanding and improving their own living conditions and
those of other people. The content and working methods of
schools must be designed in such a way as to be conducive to
this attitude towards people and society. It is the duty of
schools to give their pupils increased responsibility and
powers of co-determination as they grow older and become
increasingly mature.
...
Compulsory schools do not provide any instruction focusing
on particular occupations. The fields of knowledge which
are to be dealt with must be fundamentally important to
everybody, irrespective of their future activities. This
means, for example, that schools must familiarise their
pupils with questions of belief, with major issues
concerning human relations and survival, with international
affairs, with science of technology, with resource
conservation, with environmental questions, with economic
questions, with questions concerning working life and the
labour market, with cultural questions, with family
questions, with sexual matters, with immigrant affairs, with
law and justice, with questions concerning road traffic, and
with the hazards involved in alcohol, drugs and tobacco.
All pupils must acquire a knowledge of at least one foreign
language. A prominent place must be given to knowledge with
an important bearing on everyday life."
Although the vast majority of Swedish children fulfil the
compulsory part of their education within the public school system,
the School Act offers a possibility of attending private schools.
However, in view of the public interest in giving to each individual
certain basic knowledge and skills, and also the society's overriding
responsibility towards the children in respect of the quality of any
form of compulsory education offered, it has been deemed necessary to
subject this possibility to certain conditions.
According to Section 33a of the Act, the compulsory education
may be conducted at a private school provided that the school is
formally approved for this purpose. According to Section 34, such an
approval shall be granted provided that "the education at the school
gives knowledge and skills which as regards their nature and level
essentially correspond to the knowledge and skills supplied by the
public school and the school also otherwise essentially corresponds to
the general goals of the public school". The same section provides
that the approval be revoked in case the school "no longer satisfies
the requirements for approval and the deficiencies could not be
redressed upon reference to the principal".
The travaux préparatoires clearly reflect that the solution
regarding private schools outlined above is the result of a
well-balanced compromise between two possibly conflicting interests.
On the one hand, it was recognised that the principle of the freedom
of individuals, forming one of the corner-stones of the Swedish
society, requires the existence of a possibility to run and to attend
private schools (Government Bill 1982/83:1, p. 15). On the other
hand, it was emphasised that one should not give up the requirements
of ensuring to each individual the minimum amount of knowledge and
skills necessary for his or her participation in the life of the
society by allowing the compulsory school attendance to be fulfilled
at private schools offering insufficient education (idem).
In commenting on the solution chosen, it was stated that the
requirement to be met by private schools in the interest of both
society and the children would be to ensure that their pupils would
not miss any essential part of the education that they could have
acquired within the public school system (Government Bill 1982/83:1,
p. 18). Moreover, it was emphasised that this would afford the
private schools considerable leeway in respect of the manner of
teaching as well as the substance of the education (idem at pp.
18-20). In particular, it was pointed out that it should be possible
at a private school to give certain topics a more, and others a less,
prominent position than that given in public schools and that the
activity in a private school should be allowed "within very wide
ranges to bear the stamp of different views and values" (idem at
pp. 19-20).
According to Section 10 of the Act, a decision to approve a
private school or to revoke such an approval is to be taken by the
Local School Board. Its decision may, according to Sections 53 and
54a of the Act, be appealed to the National School Board and
ultimately to the Government.
Under Sections 50b and 50c of the Act, private schools are
subject to supervision by the school authorities in respect of that
part of their educational programmes which concerns children subject
to compulsory school attendance. This should be viewed against the
society's overriding responsibility for the basic education and
teaching of such children and, in particular, the provisions outlined
above.
2. The Facts
As a matter of clarity, the Government make the following
remarks:
The only object of the disputed decision of the School Board
of Jönköping was to determine whether, by subjecting themselves to the
education in question, children would be able to complete the
compulsory school education laid down in the School Act.
Consequently, the legal implications of the decision in the negative
was not that the school was prevented from offering education on a
private basis or that Mrs Jordebo was prevented from having her
daughter educated outside the public school system, but only that the
education intended to be offered at the school would not satisfy the
requirements of compulsory school education.
The decision of the School Board of Jönköping not to grant
approval as regards the classes 7-9 was exclusively based on the
finding that the education offered on this level did not satisfy the
minimum quality requirements laid down in Section 34 of the School
Act. As appears from particularly the Board's decision of 21 June
1983, the opinion as regards the quality was based on, among other
things, observations made during a number of visits to the school and
also an evaluation of the proficiency tests taken by the pupils of
class 7 during the school year of 1982/83.
3. The Admissibility
The Government have no objection to make as far as the
domestic remedies' rule and the six months' rule in Article 26 is
concerned.
However, the Government submit, with reference to what is said
below, that the complaint under Article 6 of the Convention should be
rejected as being incompatible ratione materiae with the Convention
for falling outside the scope of the Convention and that the complaint
under Article 2 of Protocol No. 1 should be rejected as being
incompatible ratione materiae with the Convention for falling outside
the scope of that provision or, alternatively, for being manifestly
ill-founded.
4. The Merits
4.1 Article 6 of the Convention
The Government contend that it comes within the exclusive
power of a State to decide whether or not to subject its citizens to
compulsory school education. It is also for the State to determine
the substance of such education as well as the manner in which it is
to be given. Even though a State's power in this respect may be
subject to various limitations as a result of, for instance, treaty
obligations, the exercise of such power could not, in the Government's
opinion, be viewed as anything else than the performance of public
functions exclusively vested in the State. From this follows that no
individual or institution is in a position to claim any right in the
sense that the State would be obliged to designate any particular
school or category of schools for the purpose of administering
compulsory school education.
It goes without saying that the State is free to entrust
parts of its functions of administering compulsory school education to
private individuals or institutions. However, in the Government's
view this does not in any way alter the public character of the
function. Consequently, the State is still at liberty not only to
decide whether to entrust public schools with this kind of education,
but also unilaterally to lay down the conditions for doing so and to
judge whether in a certain case these conditions are met.
In view of this, and since the only implication of the
disputed decision of the School Board was that the education in
question would not be recognised as satisfying the requirements of
compulsory school education, the Government submit that the present
case could not possibly involve any "rights" that might be
characterised as "civil" within the meaning of Article 6 para. 1 of
the Convention. Consequently, the Government maintain that the
complaint falls outside the scope of the Convention.
In case the Commission does not share this view, the
Government add the following:
It could be argued that a school offering education on a
private basis may engage in activities of an essentially private law
character, and that these activities in turn may give rise to rights
which could be characterised as "civil" within the meaning of
Article 6. Furthermore, the possibility of exercising such rights
might well, in practice, be affected by a decision not to recognise
the school for the purpose of administering compulsory school
education.
The question may be asked, therefore, whether the possible
existence of such rights is sufficient to bring a case like the
present one within the scope of Article 6 para. 1. The question is
particularly justified in view of the position taken by the European
Court of Human Rights in a number of recent cases involving
professional and commercial activities primarily aimed at offering
products or services to presumptive consumers (see e.g., Eur. Court
H.R., König judgment of 23 April 1977, Series A no. 27, Le Compte,
Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43
and Benthem judgment of 23 October 1985, Series A no. 97). Despite
the outcome of these cases, the Government submit, for the following
reasons, that the question has to be answered in the negative in
the present case.
From the wording of Article 6 follows that, for proceedings
concerning civil rights to come within the scope of the Article, the
object of the proceedings has to be the "determination" of such
rights. In a case like the present one, the only possible rights that
could be involved are those alluded to above. As regards education of
children of compulsory school age, however, such rights could only
accrue subsequent to a decision to recognise the school for such
education. As regards the education referred to in the complaint, no
such recognition was ever granted. Consequently, and unlike the
situation in the previous cases mentioned above, the disputed decision
of the School Board in the present case did not concern, nor did it
affect, any such rights. Applying Article 6 para. 1 to the present
case, therefore, would in the Government's opinion clearly be to
disregard the natural and ordinary meaning of the text and to read
into the Convention something that is not there.
In support of this reasoning, the Government invoke the
judgment of the Court in the case of Le Compte, Van Leuven and De
Meyere. Observing that proceedings, in order to come within the scope
of Article 6 para. 1, had to be "decisive" for a civil right, the
Court construed this to mean that the right had to be "the object - or
one of the objects - of" the dispute and that "the result of the
proceedings (had to) be directly decisive for such a right" (para. 47).
Furthermore, there are other significant differences that
clearly distinguish the present case from those referred to above.
Thus, the activities involved in the latter cases have been of a quite
different character than the one now in question. The reason for the
State interest in the activities involved in the previous cases has
been, not the significance of the activities as such, but health
hazards or similar concerns related to them. Such concerns apparently
have constituted the entire supervision in one form or another, and
the activities as such have preserved their essentially private
character. Those entering into contractual or other relationships
with the persons or entities carrying on the activities have done
so exclusively with a view to the presumptive benefits directly
flowing from these relationships. The proceedings have resulted in a
prohibition to carry on the activities concerned and, consequently,
also been directly and immediately decisive in respect of the rights
involved.
As regards the education now in question, on the other hand,
the State interest is focused on the very activity as such. In view
of its importance to society, children have been, without exceptions,
placed under an unconditional obligation to attend school. A child of
compulsory school age attending a duly recognised private school,
therefore, would not only be engaged in a relation with the school,
the nature of which arguably might be characterised as private, but it
would also be simultaneously fulfilling an obligation imposed on it by
society. Moreover, the disputed decision did not directly affect the
arguable private aspects of the activities, i.e. the possible civil
rights involved, but its only implication was that the education
intended to be offered would not be recognised as satisfying the
requirements of compulsory school education.
Given these characteristics of the present case, the
Government maintain that the case could not come within the scope of
Article 6 even assuming that the disputed decision might have had some
effects on the possibilities of exercising the rights of a civil
character. Suffice it to say that such possible effects would clearly
have been merely indirect and, besides, in the Government's view too
remotely related to the object and purpose of the proceedings. In
this context, the Government would again like to draw attention to the
judgment of the Court in the Case of Le Compte, Van Leuven and De
Meyere. In considering in general the relation between a dispute and
a civil right involved, the Court stated that "a tenuous connection or
remote consequences" would not suffice to entail the application of
Article 6, but indeed that the right need to be "the object - or one
of the objects - of" the dispute and "the result of the proceedings
must be directly decisive" for the right (p. 21, para. 47).
To sum up, in the Government's view, the proceedings
complained of did not involve the determination of any civil rights of
the applicants. Consequently, the Government submit that the
complaint falls outside the scope of Article 6 of the Convention.
In case the Commission does not share this view, the
Government admit that there was no access to a tribunal satisfying
the requirements of Article 6 para. 1 of the Convention.
4.2. Article 2 of Protocol No. 1
According to the first sentence of Article 2, no person shall
be denied the right to education. Clearly, this provision, using a
negative rather than positive formula, places no positive obligation
on the Contracting Parties in the sense that they would have to take
effective steps such as establishing, subsidising or formally
recognising educational establishments. This has also been
consistently emphasised by the Court, which for instance in the
Belgian Linguistic Case (Eur. Court H.R., Belgian Linguistic judgment
of 23 July 1968, Series A no. 6) construed the provision as
guaranteeing to persons "the right, in principle, to avail themselves
of the means of instruction existing at any given time", but as laying
down "no specific obligations concerning the extent of these means and
the manner of their organisation or subsidisation" (p. 31).
It is equally clear from the wording that also the second
sentence exclusively concerns a State's system of education existing
at any given time and that, therefore, it does not require a State to
take any positive actions such as establishing or formally recognising
any particular category of schools or education. Furthermore, when
organising, developing and administering a system of education, the
second sentence obviously places no other restraints on the State than
an obligation to respect the religious and philosophical convictions
of parents. There is clearly nothing, therefore, that prevents a
State from laying down and applying certain minimum standards, related
solely to the quality of the education offered, in determining whether
to formally recognise education offered at a certain school as
satisfying the requirements of compulsory school education.
In the present case there is no allegation of a denial of the
right to education within the existing school system. Furthermore,
there is nothing in the complaint to indicate that the education
offered within this system would not meet the requirements contained
in the second sentence of Article 2.
As has been pointed out above, the effect of the disputed
decision was not that the applicant was prevented from offering
private education or having her child educated outside the existing
educational system, but only that the education intended to be offered
at her school would not be recognised as satisfying the requirements
of compulsory school education. The Government submit that Article 2
does not guarantee any right to such a recognition and that,
therefore, the complaint falls outside the scope of this provision.
In addition, the disputed decision was based exclusively on an
evaluation of the quality of the education intended to be offered.
Therefore, the Government alternatively maintain that the complaint is
manifestly ill-founded.
5. Conclusion
The position of the Government is
- that the application should be declared inadmissible for
falling outside the scope of the Convention and Protocol No. 1 or, as
regards the complaint under Protocol No. 1, alternatively for being
manifestly ill-founded, and
- that, in any event, there has been no violation of the
Convention or Protocol No. 1.
B. The Applicant
1. Article 6 of the Convention
The Government's observations may be briefly summarised as
follows:
Article 6 is not applicable, there being no civil right at
stake. If there is a civil right at stake, the decision complained of
was not a "determination" of, nor "concerned" or "affected" such a
right. The Government admit that there was no access to a tribunal
satisfying the requirements of Article 6 para. 1.
The applicants note that the Government have not given an
answer to the question whether there was any "dispute", except
possibly by inference by stating that there could be no valid claim.
This however is a material question upon which a tribunal should
decide.
The applicants submit that the mere existence of the decisions
of the School Board, the National School Board and the Government
prove the existence of a "dispute" between the applicants and the
authorities.
The situation concerning Article 6 is not uncomplicated.
Mrs Jordebo is concerned in two quite different respects:
a. as conducting a private school, in competition with the
schools kept by the municipal instances,
b. as a parent of her daughter, whose education she wishes
to have performed in a certain way in conformity with her religious
and philosophical convictions.
As regards a., it should be remembered that Mrs Jordebo makes
a meagre living from the school. Her position as regards the families
who send their children to the school is a contractual situation,
manifestly of a civil character. The school has already taught the
classes 1-6, and whether the children may stay on for three more years
is evidently a question of a commercial situation, although
Mrs Jordebo hates to look at her situation that way, the idealistic
motive being entirely predominant. But man also lives of bread. The
right to run a school is obviously a civil right.
Thus, the existence of the school as a complete school is at
stake, and there is a question of civil rights and obligations
involved. The Government seem to regard the right to keep a school as
something entirely within "le fait du Prince". But this is clearly
different from the mainstream in the countries of the High Contracting
Parties, necessitating an autonomous way of judgment.
As regards b., it seems evident that the education of one's
children is a private matter, and a question of civil rights and
obligations. There is undeniably an obligation for parents to educate
or have educated their children, and there is a right for the State to
see to it that this is properly done. However, this is wholly
compatible with the said obligation being a civil one. The Government
seem to look at schooling the same way as at military service, where
of course no competing "private regiments" could be tolerated.
Article 6 para. 1 obviously cannot give Mrs Jordebo any right
to keep a school. Nevertheless, a tribunal would be able to judge in
an independent manner whether the school is satisfactory and gives the
pupils a tolerably good education, which is evidently the question to
be resolved, and which has been resolved in a negative way, by three
instances not satisfying the requirements of Article 6 para. 1.
It would seem that not more than one such inferior instance is
allowed (Ettl and others v. Austria, Comm. Report 3.7.85), before a
tribunal satisfying the requirements of Article 6 para. 1 should be
available. The Government say that the applicants have not been
denied the right to run a school. That is true. The decision of the
Government is not formally to deny the right to run the school. But
the decision of the Government means that the school is not allowed to
receive pupils. This decision has the same importance as a formal
decision to stop the school. If the school is not allowed to receive
pupils it means that the school is prevented from functioning. If
this is done through a formal decision to stop the school or through a
decision that no pupils are allowed to go to the school is of no
importance for the interpretation of the concept of "civil right" in
Article 6 of the Convention.
2. Article 2 of Protocol No. 1
The Government's observations may be summarised as follows:
No denial of the right to education has taken place. Nothing
indicates that the education offered in the "existing school system"
would not meet the requirements of the second sentence in Article 2.
As to the interpretation of Article 2 of Protocol No. 1 the
following is stated.
The first sentence concerns the obligation for the State not
to refuse anyone elementary teaching ("instruction"). The applicants
have not alleged any violation in this sense.
The second sentence concerns voluntary functions assumed by
the State ("dans l'exercice des fonctions qu'il assumera").
What functions has the Swedish State assumed?
If the State had permitted only one unitary school, the
applicants' case had been much worse than it is. In fact, the State
has not only tolerated private schools but has even given considerable
financial means to some of them. For example, it has given much money
to the so-called Waldorf schools which work on the principles of the
anthroposophic movement created by Rudolf Steiner. It is notorious
that the said Waldorf schools are extremely different from the normal
municipal school. It is not for the applicants to dispute the value
of their pedagogic methods. However, it is an example of the kind of
functions assumed by the State as regards some schools in order to
ensure education and teaching in conformity with parents'
philosophical convictions. The State has obviously assumed the
function to assure a certain standard of the teaching of the children.
In controlling this standard the State must respect the
parents' philosophical convictions, which may differ from one school
to another.
The applicants' school was founded with the aim of preserving
the tradition of the Christian school in Sweden before the
secularisation of the municipal schools. There is thus nothing odd or
strange in these general ideas, although this kind of school no longer
fits in the general system of a secularised school and State. Thus,
in the applicants' school, the teaching of religion, although
oecumenical and not pertaining to any particular Christian sect or
movement, is confessional and founded on Christian belief. There are
morning prayers and prayers before and after meals, such as was common
in all schools 30 years ago.
It is Mrs Jordebo's opinion, both in her quality as a parent
and as a school headmistress that these are reasonable things for a
Christian person and form a respectable demand.
Article 2 of Protocol No. 1 gives Mrs Jordebo, as a parent,
the right to ensure such education and teaching all the more so since
it falls within the scope of the functions which the State has in fact
assumed.
3. Summary and final remark
The State has the right to have the applicants' school
inspected, but the judgment over the school and its quality should be
made in an independent way, avoiding all harassment, by inspectors
free of bias. The school has not been treated in such a way, and
Mrs Jordebo's right, as a parent, has thereby been violated, as
also by decisions of the instances which are bound to be biased by
their coupling to the State and the municipal school system.
Mrs Jordebo's conclusion is that her rights have been
violated, both in her quality as a school leader and together with her
school, which has legal personality in Swedish law, and in her quality
as a mother of a child, pupil of her school.
Finally, as general information the following is mentioned.
Sweden is nearly unique among countries belonging to the Council of
Europe as far as the school policy is concerned. In Sweden it is a
basic political idea, which has governed the political leaders for a
long time, that the State and the local municipal authorities must
control the education: what the children have to learn and in which
ways they have to receive the education must in every instance be
decided by the political majority of the country. For this reason
private schools, although formally allowed, are in practice stopped
with all means. The children should be kept within the
State-municipal public schools in order to prevent any other influence
on the education than such as has been accepted by the political
majority. A formal decision has been made that not more than 0.3 % of
the children of compulsory school age may be allowed to visit private
schools, three out of 1000 children. The whole Swedish school system
is very close to violating Article 9 of the Convention when it says
that everyone is guaranteed the right to think freely. The idea is
that the Swedish school children are in principle led to think only
in the directions that are decided by the political majority of the
Parliament. When this majority has decided that the public education
should be non-confessional, it means that this majority can allow only
three children out of 1000 to have a confessional education. To
maintain a democratic outlook, private schools cannot be totally
forbidden but instead economic rules have been adopted to stop private
schools in Sweden in reality. These measures are very efficient. The
Anna school has, in spite of all these difficulties of a financial
kind, been successful and created an alternative in Jönköping. Then
other ways have been used in order to stop its development. In this
respect it is easy to say that the education offered at the
Anna school is not good enough. In the applicants' opinion the
education offered to the children was good enough for reasons which it
is not necessary to explain here.
THE LAW
1. The applicants have complained of the fact that it has not
been possible for Mrs Jordebo's daughter to attend the seventh and
eighth forms at the Anna School. They have alleged that this is a
breach of Article 2 of Protocol No. 1 (P1-2).
Article 2 of Protocol No. 1 (P1-2) reads as follows:
"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 Government submit that this complaint is incompatible
ratione materiae with the provisions of the Convention and Protocol
No. 1, (P1) alternatively manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
The Commission considers that the applicants' complaint can
only be examined by the Commission in so far as it is brought by
Mrs Jordebo. The Foundation cannot claim to be a "victim" of a breach of
Article 2 of Protocol No. 1 (P1-2) within the meaning of Article 25
(Art. 25) of the Convention. Insofar as this complaint is brought by the
Foundation it follows that the complaint is incompatible ratione personae with
the provisions of the Convention and must be rejected pursuant to Article 27
para. 2 (Art. 27-2) of the Convention.
The fact on which the alleged breach of Article 2 of Protocol No. 1
(P1-2) is based, is the fact that the Foundation has not been permitted to
run the seventh and eighth forms of the compulsory school. The question which
arises is whether Article 2 of Protocol No. 1 (P1-2) could be interpreted
as granting a right to start and run a private school, and whether, when a
private school is as such approved, the school should have a right to run
classes at all stages of the compulsory school.
Article 2 of Protocol No. 1 (P1-2) is dominated by its first
sentence, which enshrines the right of the child to education, while
the second sentence, being an adjunct to the first sentence, enshrines
the right of the parents to ensure to their child such education and
teaching as conforms with the parents' religious and philosophical
convictions (see Eur. Court H.R., Campbell and Cosans judgment
of 25 February 1982, Series A No. 48, para. 40).
Article 2 of Protocol No. 1 (P1-2) does not require the States to
establish any specific educational system. It guarantees, however,
that persons subject to the jurisdiction of a Contracting State should
have the right to avail themselves of the educational institutions
existing at a given time. The Convention organs have recognised that
the right to education 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" (cf. Eur. Court H.R., Belgian
Linguistic judgment of 23 July 1968, Series A, 1968, pp. 31-32). In
the Belgian Linguistic Case, the Court found that the refusal of the
Belgian State to establish or subsidise, in the Dutch unilingual
region, primary school education in which French was employed as the
language of instruction was not incompatible with the requirements of
Article 2 of Protocol No. 1 (P1-2) (op cit, p. 42).
The Commission considers that it follows from the judgment of the
European Court of Human Rights in the Case of Kjeldsen, Busk Madsen and
Pedersen (judgment of 7 December 1976, Series A no. 23, pp. 24-25, para. 50)
that Article 2 of Protocol No. 1 (P1-2) guarantees the right to start and
run a private school. However, such a right cannot be a right without
conditions. It must be subject to regulation by the State in order to ensure a
proper educational system as a whole. The Commission recalls that the decision
not to grant approval as regards classes 7-9 was based exclusively on the
finding that the education offered at this level did not meet the condition as
to the quality provided for in Section 34 of the School Act. Having examined
the present case, in particular the reasons for refusing the Foundation
permission to run the upper stage of the compulsory school, the Commission
finds the refusal compatible with Article 2 of Protocol No. 1 (P1-2).
Moreover, the applicants have not substantiated that other
schools which were available to Mrs Jordebo's daughter provided teaching
which was in conflict with Mrs Jordebo's religious and philosophical
convictions, even assuming that no other Christian school was available
in the area.
In these circumstances, the Commission finds no indication of
a breach of Article 2 of Protocol No. 1 (P1-2). It follows that, in this
respect, the application is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants also complain that they have not had the
benefit of a court determination of their "civil right" to conduct
school activities pursuant to Section 34 of the School Act. They
allege a violation of Article 6 para. 1 (Art. 6-1) of the Convention, which in
its first sentence provides that:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Commission first notes that the Foundation has been
authorised to run a private school corresponding to the lower and
middle stages (classes 1 to 6) of the public school. In this respect
there is thus no dispute ("contestation") between the applicants and
the authorities and, accordingly, a "determination" by a "tribunal"
within the meaning of Article 6 (Art. 6) of the Convention is not required.
The Government submit that this complaint is incompatible
ratione materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. They contend that a "civil
right" of the applicants was not determined when the School Board refused to
accept that the proposed teaching at the Anna School for the seventh to the
ninth form could be counted as fulfilment of the school obligation. The
Government also submit that there was no "determination" of any possible civil
rights. The Government point out that the disputed decision did not prevent
the Anna School from offering education on a private basis and did not prevent
Mrs Jordebo from having her daughter educated outside the public school system.
It only meant that the proposed education at the school would not satisfy the
conditions for compulsory school education.
The Commission notes that the administrative proceedings
concerned have been brought by the Foundation, and not by Mrs Jordebo
in her personal capacity. It follows that only the Foundation can,
within the meaning of Article 25 (Art. 25) of the Convention, claim to be a
"victim" of a breach of Article 6 (Art. 6).
Accordingly, insofar as this complaint is brought by
Mrs Jordebo herself it is incompatible ratione personae with the
provisions of the Convention and must be rejected pursuant to
Article 27 para. 2 (Art. 27-2).
The issues to be determined are whether any serious dispute
arose between the Foundation and the authorities with regard to the
decision under Section 34 of the School Act not to approve the
proposed upper stage education at the Anna School for fulfilment of the
school obligation and whether this decision was a "determination" of a
"civil right" of the Foundation.
If these questions were answered in the affirmative, Article 6
para. 1 (Art. 6-1) of the Convention would require access to a "tribunal"
satisfying the conditions of Article 6 (Art. 6) for the determination of any
such dispute. In this respect the Government admit that no such
access to a "tribunal" existed for the Foundation.
The Commission has carried out a preliminary examination of
the question of the applicability of Article 6 para 1 (Art. 6-1) of the
Convention. It considers that this question raises such important
issues of fact and law that its determination should depend upon an
examination of the merits. This aspect of the application must
therefore be declared admissible, no other ground for declaring it
inadmissible having been established.
For these reasons, the Commission
DECLARES ADMISSIBLE
without prejudging the merits, the complaint that the
Foundation did not have access to a tribunal satisfying
the conditions of Article 6 para. 1 (Art. 6-1) of the Convention for
the determination of whether the Anna School should be
approved for running the seventh to ninth forms of the
compulsory school.
DECLARES INADMISSIBLE
the remainder of the application.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)