Application No. 11533/85
INGRID JORDEBO FOUNDATION
OF CHRISTIAN SCHOOLS
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 8 December 1987)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-14) ............... 1
A. The application (paras. 2-4) ............. 1
B. The proceedings (paras. 5-10) ............ 1
C. The present Report (paras. 11-14) ........ 2
II. ESTABLISHMENT OF THE FACTS (paras. 15-34) .... 4
A. The particular circumstances of the case
(paras. 15-24) ........................... 4
B. Relevant domestic law (paras. 25-34) ..... 6
III. SUBMISSIONS OF THE PARTIES (paras. 35-72) .... 10
A. The applicant (paras. 35-53) ............. 10
B. The Government (paras. 54-72) ............ 13
IV. OPINION OF THE COMMISSION (paras. 73-99) ..... 17
A. Point at issue (para. 76) ................ 17
B. Article 6 of the Convention (paras. 77-99) 17
a. Applicability of Article 6
para. 1 of the Convention
(paras. 80-94) ....................... 18
b. Compliance with Article 6
para. 1 of the Convention
(paras. 95-100) ....................... 20
Dissenting opinion by Mr. Martinez .................... 22
APPENDIX I HISTORY OF THE PROCEEDINGS ........... 24
APPENDIX II DECISION ON THE ADMISSIBILITY ........ 25
APPENDIX III COMMISSION'S PROPOSALS
(Separate document)
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The application was originally brought by the Ingrid Jordebo
Foundation of Christian Schools (Ingrid Jordebos Stiftelse för Kristna
Skolor) and Mrs. Ingrid Jordebo, a Swedish citizen born in 1930 and
resident at Jönköping. Mrs. Jordebo is the headmistress of the Anna
School which is run by the foundation. Mrs. Jordebo represents the
foundation before the Commission.
3. The Government are represented by their Agent, Mr. Hans
Corell, Ambassador, Under-Secretary at the Ministry for Foreign
Affairs, Stockholm.
4. The case relates to the determination of whether the Anna
School (Annaskolan) should be approved for running the seventh to
ninth forms of the compulsory school. The applicant foundation
complains that it had no possibility of having the dispute concerning
the refusal to grant approval examined by a tribunal satisfying the
conditions of Article 6 para. 1 of the Convention. Originally the
application also related to Mrs. Jordebo's complaints under Article 2
of Protocol No. 1 that her right to ensure for her daughter an
education and teaching in conformity with her religious and
philosophical convictions had been violated.
B. The proceedings
5. The application was introduced on 2 May 1985 and registered on
7 May 1985. On 4 December 1985 the Commission decided, in accordance
with Rule 42 para. 2 sub-para b of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
them to present before 21 March 1986 their observations in writing on
the admissibility and merits of the application in particular with
regard to Article 6 para. 1 of the Convention. The time-limit for the
observations was, at the request of the Government, extended until
16 May 1986.
The Government's observations were dated 13 May 1986 and the
applicants' observations in reply, after an extension of the time
limit to 4 September 1986, were dated 6 August 1986.
6. Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to Mrs. Jordebo on 18 July 1986.
7. On 6 March 1987 the Commission decided to declare admissible
the applicant foundation's complaint that it did not have access to a
tribunal satisfying the conditions of Article 6 para. 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. The remainder of the application was declared inadmissible.
8. The parties were then invited to submit any additional
observations on the merits of the application which they wished to
make.
The applicant foundation submitted further observations by
letter of 1 June 1987 and the Government submitted further
observations on 10 June 1987. These observations were communicated to
the other party for information. Additional observations from the
applicant foundation were dated 5 September 1987.
9. On 11 July 1987 the Commission considered the state of
proceedings of the case. On 8 December 1987 the Commission
deliberated on the merits and took the final votes in the case.
10. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C.A. NØRGAARD
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
Mrs. J. LIDDY
The text of the Report was adopted by the Commission on
8 December 1987 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found
disclose a breach by the Government of their
obligations under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
15. The Anna School was started in 1976 by Mrs. Jordebo who is the
headmistress of the school and who runs it through the Ingrid Jordebo
Foundation of Christian Schools. The Anna School is the only non-public
school for pupils of compulsory school age (7 - 16 years) at Jönköping.
The public school is run by the School Board (skolstyrelsen) of Jönköping.
16. In the school year 1982/83 the Anna School ran classes 1 to 6
(low and middle stage). In addition, class 7 was run on a trial basis
after the approval of the School Board. Permission to run the classes
had been granted by the School Board on 24 August 1982.
For the school year 1983/84, the foundation applied for
permission to run classes 1 to 6 and 7 to 9 (upper stage).
17. 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 decision of the School Board was based on a letter
containing a proposal from the Deputy School Director. The letter,
dated 15 June 1983, reads, in the relevant parts, as follows:
"On 24 August 1984 the School Board granted the Anna School
permission to teach classes 1 to 7 during the school year
1982/83. By this decision the Anna School was for the first
time given the possibility of receiving pupils for the upper
stage, class 7.
During the school year I have visited the Anna School four
to five times and followed the education. I have also
received information about the exams of the pupils of class 7
insofar as such information was available at the end of the
school year.
Like in previous years the education at the low and middle
stages have been run in a satisfactory way, although
Mrs. Jordebo has been the only qualified teacher. The other
teachers have by and large worked during the whole school year.
In class 7 (two pupils) there have been several changes of
teachers during the year. During the last weeks one qualified
language teacher was in service, whereas the other teachers
lacked qualifications as teachers (high school competence
or lower). This is not satisfactory having regard to the
quality of the education. The Anna School has had access
to localities within the Rosenlund area. The supply of
common educational facilities is otherwise insufficient.
My impressions of the education in class 7 make me very
doubtful as to whether it is appropriate to permit upper
stage education at the Anna School. These pupils shall
at the end of the autumn term of class 9 be given marks
to be used when being admitted to high school.
...
With reference to the above it is proposed that the
School Board
grant the foundation ... permission to run the Anna School
with classes 1 to 6 for the school year 1983/84
reject the application for a permit regarding classes 7 to
9 at the Anna School for the school year 1983/84."
18. 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 estimated 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.
19. The foundation appealed to the National Board of Education
(skolöverstyrelsen). It submitted inter alia that the handling of the
matter by the Deputy School Director had not been in accordance with
the School Act. The foundation further submitted that the School Act,
notably Section 34, in its new wording after 1 July 1983 did not
provide anything about the qualifications of the teachers. The
foundation alleged that if it were not to be subject to an arbitrary
assessment an examination had to be made together with the
corresponding classes of the public school. It noted that the public
schools in the area had also engaged non-qualified teachers.
20. On 18 April 1984 the National Board of Education rejected the
appeal for the following reasons:
"According to Section 34 of the School Act (skollagen) an
independent school shall be approved for fulfilment of the
obligation of compulsory schooling provided that the teaching
at the school conveys knowledge and skills which as regards
their nature and level essentially correspond to the
knowledge and skills given by the public school, and the
school otherwise corresponds to the general objectives of
the public school.
The approval shall 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 of the quality of the education.
Both the School Board and the County Board of Education
(länsskolnämnden) have found that the upper stage
teaching which is given at the Anna School does not convey
knowledge and skills of a nature and level which essentially
correspond to the knowledge and skills given by a public
school.
The National Board of Education rejects the appeal."
21. The foundation appealed to the Government (the Ministry of
Education). The Government obtained the opinion of the National Board
of Education which in turn had heard the School Board and the County
Board of Education.
22. On 13 December 1984 the Government rejected the appeal with
the following reasoning:
"The Government do not find it established from the
investigation that the conditions laid down in Section 34
of the School Act, that the teaching at the school shall
convey knowledge and skills of a nature and level which
essentially correspond to the knowledge and skills given
by the public school, were present concerning the classes
at issue."
23. While the case was pending before the Government, the
foundation carried out teaching for classes 7 and 8 of the school year
1983/84.
24. On 16 April 1985 the School Board of Jönköping decided to
approve the Anna School for running the seventh to ninth forms of the
compulsory school from the school year 1984/85 and onwards. The
reason for the decision was that the school had employed more
competent personnel for the upper stage and that, consequently, the
quality of the education had improved.
B. Relevant domestic law and practice
25. The Swedish school system was until 1 July 1986 regulated by
the 1962 School Act. The Act was supplemented by the 1971 School
Ordinance (skolförordningen) and the 1980 Compulsory School Curriculum
(läroplan för grundskolan), issued by the Government on the basis of
guidelines laid down by the Parliament. The 1985 School Act, which
succeeded the 1962 School Act, entered into force on 1 July 1986 and
consequently is not material to the present case. In the following
reference is made to the School Act in its wording between 1 July 1983
and 30 June 1986.
26. The basic education, for children of an approximate age of
7 - 16 years, is compulsory according to Section 30 paras. 1 and 2 of
the School Act, which reads as follows:
(Swedish)
"För barn, som är bosatt i riket, gäller skolplikt.
Skolplikt inträder med början av höstterminen det kalenderår
då barnet fyller sju år, och upphör, om den ej fullgjorts
dessförinnan, med utgången av vårterminen det kalenderår,
då barnet fyller sexton år."
(English translation)
"A child resident within the country is subject to compulsory
school attendance.
The compulsory school attendance applies from the beginning
of the autumn term of the year, during which the child attains
seven years of age, and terminates, if not already fulfilled,
at the end of the spring term of the year, during which the
child attains sixteen years of age."
This compulsory, basic education is a significant element in
the fulfilment of the obligations undertaken by the Swedish State in
educating and teaching children and young people. 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 working
life or higher education.
27. 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 (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."
28. The majority of Swedish children discharge the compulsory part
of their education within the public school system. However, the
School Act offers a possibility of attending private schools in place
of the public school. In view of the public interest in giving to
each individual certain basic knowledge and skills, and also the
special responsibility of the authorities in respect of the quality of
any form of compulsory education offered, it has been deemed necessary
to subject the running of private schools to certain conditions.
29. According to Section 33a para. 1 of the Act, the compulsory
education may be discharged at a private school provided that the
school is formally approved for this purpose. Section 33a para. 1 of
the Act reads as follows:
(Swedish)
"Skolplikten får fullgöras i en fristående skola, om skolan
är godkänd enligt 34 §. I 34a § finns bestämmelser om att
skolplikten i vissa fall får fullgöras i annan fristående
skola, om den har godkänts för ändamålet."
(English translation)
"Compulsory school attendance may be discharged in a
private school, if the school has been approved
according to Section 34. Section 34a provides that
in some cases compulsory school attendance may be
discharged in another private school, if it has been
approved for that purpose."
30. Section 34 of the Act reads as follows:
(Swedish)
"En fristående skola skall godkännas för skolpliktens
fullgörande, om skolans undervisning ger kunskaper och
färdigheter som till art och nivå väsentligen svarar mot
de kunskaper och färdigheter som grundskolan förmedlar
och skolan även i övrigt väsentligen svarar mot grundskolans
allmänna mål. Om skolan inte längre uppfyller dessa villkor
och bristerna inte kan avhjälpas efter hänvändelse till
huvudmannen, skall godkännandet återkallas."
(English translation)
"A private school shall be approved for the discharge of
the compulsory school attendance if the teaching at the
school gives knowledge and skills of essentially the same
character and level as the knowledge and skills provided
by the public school and if the school also otherwise
essentially corresponds to the general goals of the public
school. If the private school no longer fulfils these
requirements and if the deficiencies cannot be rectified
after contact with the principal, the approval shall
be revoked."
31. The legal implication of a decision not to approve a private
school is not that the school is prevented from offering teaching on a
private basis, but that the teaching offered at the school does not
satisfy the conditions for compulsory school education and cannot
therefore be a substitute for such education.
32. The travaux préparatoires show that the solution regarding
private schools is the result of a compromise between two possibly
conflicting interests. On the one hand, it was recognised that the
principle of the freedom of individuals 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 requirement 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
inadequate education (idem).
33. According to Section 10 of the School 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 Board of Education and
a further appeal may be lodged with the Government.
34. 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.
III. SUBMISSIONS OF THE PARTIES
A. The applicant
35. The Government have objected that the applicant foundation has
not made a complaint of its own under Article 6 of the Convention and
that consequently there is no remaining issue to be examined on the
merits.
36. It is submitted that this objection has already been settled
by the decision on admissibility. The Commission has correctly found
the complaint to have been made jointly by the two applicants. No
distinction between the applicants was intended. The fact that Mrs.
Jordebo used the pronoun "I" is due to the fact that the applicant
foundation cannot be said to have an opinion being a legal entity.
The Government have admitted that they made no such distinction
themselves.
37. The applicant foundation submits that the right to run a
school is a civil right. The possibility for the foundation to
exercise this right depends on the decision of the Government. The
Anna School's position as regards the families who send their children
to the school is a contractual situation 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 a question of a commercial situation,
although there is an idealistic motive for running the school.
38. The Anna School has suffered great damage because of the
decisions of the authorities. The fact that the school was held
incapable of teaching classes 7-9 for quality reasons has been
published in the local newspapers. The coverage has been detrimental
also in financial respects. Thus, the existence of the school as a
complete school was at stake, and there was a question of civil rights
and obligations involved. The Government seem to regard the right to
keep a school as entirely being "le fait du Prince". But this is
clearly different from the mainstream in the countries of the High
Contracting Parties, which requires an autonomous way of judgment.
39. Article 6 para. 1 cannot give the applicant foundation 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 was the question to
be resolved, and which has been resolved in an unfavourable way, by
authorities at three levels not satisfying the requirements of Article
6 para. 1.
40. It would seem that not more than one such inferior authority
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 state that the applicant foundation has not
been denied the right to run a school. That is true. The decision of
the Government was not formally to deny the right to run the school.
But the decision of the Government meant that the school was not
allowed to receive pupils. This decision had the same effect 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.
41. The State has the right to have the applicant's 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. Moreover
the right of the foundation has been violated by decisions of
bodies which are bound to be biased through their connections with the
State and the municipal school system.
42. The foundation submits that the mere existence of the
decisions of the School Board, the National Board of Education and the
Government prove the existence of a "dispute" between the applicant
and the authorities. There is a dispute from two points of view, one
from a religious point of view and one from a pedagogical (methodical)
point of view.
43. As regards the dispute based on religion, the applicant
recalls that the foundation was founded in order to run schools that
conduct young people to a Christian faith. It is a civil right to
embrace a certain religion. The Government have in their compulsory
school curriculum only allowed information about different religions.
No religion is allowed to be preferred. Through this curriculum the
Government violate the true Christian faith. From the Bible you can
learn as follows: "For there is one God, and one mediator between God
and men, the man Christ Jesus" (1 Timothy 2:5). There is thus a
dispute between the foundation, which is bound to the Bible, and the
Government, which are bound to an "equality between religions". It
should be observed that the pupils of the Anna School learn about
other religions and are taught to have respect for other people's
opinions.
44. As regards the dispute of a pedagogical nature, it is recalled
that the foundation works for the same goals as are described in
Swedish legislation concerning compulsory school education. The
dispute concerns how to attain these goals. The Anna School teaches
very individually, taking into consideration the abilities and the
maturity of the pupils.
The compulsory school in Sweden mainly aims at the pupils
studying as many pages in the text-books as possible. The Anna School
concentrates on how much the pupils have understood and how they can
use their knowledge independently. This method was explained to the
school-inspectors but they ignored the explanation. The pupils of the
Anna School would after nine years' studies have the same and in some
cases even better skills and knowledge than the pupils in the
municipal schools.
45. As regards the Government's allegation that there was no
"dispute" the applicant foundation contends that cases like the
present one in other Contracting States are examined by tribunals. A
High Contracting Party cannot dispense with tribunals for cases it
seems "simple to judge".
46. The Government's reasoning is weakened by the fact that the
School Board of Jönköping decided to approve the upper stage education
at the Anna School shortly after the Government's refusal to approve
it, and without the conditions at the school having changed.
47. In the case of Van Marle and others (see Eur. Court H.R., Van
Marle and others judgment of 26 June 1986, Series A no. 101, p. 12
para. 36), referred to by the Government, the European Court of Human
Rights found that an assessment evaluating knowledge and experience
for carrying on a profession under a particular title is so far
removed from the exercise of the normal judicial function that the
safeguards in Article 6 cannot be taken as covering resultant
disagreements. The judgment confirms the position in all countries
that an examination result cannot be reviewed by a tribunal.
48. In the present case there was no dispute over an examination
or a degree, nor about the competence of the teachers or the actual
results of the teaching. The standard aptitude tests (standardprov)
used in the compulsory schools in Sweden were also used at the Anna
School. The results of those tests were available to the
school-inspector who never asked to see them. There has been no
examination of the Anna School, its pupils or their results that could
be resembled to the examination referred to in the Van Marle and
others judgment.
49. The school-inspector has told Mrs. Jordebo that he does not
approve of Christian schools. It is not likely that this inspector
would give an unbiased judgment of the Anna School. In an ordinary
hearing in a tribunal it would have been possible to expose this
fact.
50. The original decision of the School Board of Jönköping was
subject to review and was indeed reviewed. The Government have not
given any reason, and no reason can be found, why the review could not
be made by a tribunal.
51. The fact that the School Board of Jönköping can find the Anna
School good enough to run the seventh to ninth forms of the compulsory
school immediately after the Government have found that it is not,
proves that arbitrariness dominated the proceedings and that the rule
of law did not prevail.
52. Finally, Sweden is 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 by
all means. The children should be kept within the public schools in
order to prevent any other influence on the education than such as has
been accepted by the political majority.
The Anna School has, in spite of all these difficulties of a
financial kind, been successful and created an alternative school in
Jönköping. 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.
53. The applicant foundation concludes that it has been a victim
of a breach of Article 6 para. 1 of the Convention.
B. The Government
54. The Government first refer to the original application of
2 May 1985. They question whether the complaints as to Article 6 were
submitted by the foundation or by Mrs. Jordebo herself or both. In
the application, signed by Mrs. Jordebo, the expression used is: "I
consider it as a civil right to run etc" and "I have not in accordance
with Article 6 in the Convention been able to get this my right tried
at court".
From this point of view it could be argued that the complaints
as to Article 6 relate to Mrs. Jordebo herself and that there exist
no remaining complaints by the foundation to be examined. The
Government leave this question to the Commission. It would seem that
Mrs. Jordebo has not made a clear distinction between herself as a
physical person and the foundation as a legal entity, for which she
obviously is competent to sign. It is admitted that a clear
distinction does not appear in the Government's decision of 18 April
1984 either.
55. 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. It 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.
56. 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 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 determine
whether in a certain case these conditions are met.
57. 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 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.
58. 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.
59. 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
justified in view of the position taken by the European Court of Human
Rights in some 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.
60. It follows from the wording of Article 6 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 would in the Government's opinion be to disregard the natural and
ordinary meaning of the text and to read into the Convention something
that is not there.
61. 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).
62. Furthermore, there are other significant differences that
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 been
the reason for 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.
63. 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.
64. In view of 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 have
been merely indirect and too remotely related to the object and
purpose of the proceedings. In this context, the Government refer 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 (loc. cit., p. 21, para. 47).
65. As regards the issue whether any serious dispute arose between
the applicant 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 attendance obligation, it appears from the application that
the applicant is of the opinion that the mere existence of the
decisions of the School Board, the National Board of Education and the
Government proves the existence of a "dispute" between the applicant
and the authorities.
66. The decision by the Government does not mean that the
foundation is denied the right to run a school. Neither does it mean
that the school is prevented from receiving pupils, which the
foundation alleges. The only matter decided upon was that the upper
stage education at the Anna School was not approved to fulfil the
school attendance obligation. In this matter there was a difference
of opinion between the foundation and the authorities. The question
is whether this difference of opinion could be described as a "dispute"
within the meaning of Article 6.
67. Section 34 of the School Act aims at setting a certain minimum
standard which must be achieved if an approval shall be granted. In
examining whether this criterion is satisfied the authority concerned
has the possibility of having a representative visit the school and
survey the education and see the teachers. This was done in this
case. As a result of the examination the Swedish authorities found
that the education offered by the Anna School in classes 7 to 9 did
not satisfy the minimum criteria set in Section 34 of the Act.
The assessment thus only relates to the quality required for
running the seventh to ninth forms of the compulsory school.
68. The decisions of the authorities do not refer to questions of
law or to questions of fact. The facts upon which the assessments
were made were uncontested as such. The pertinent provision, Section
34 of the School Act, is quite clear and there was no need for an
interpretation of this provision in the legal sense of the word.
There was no question whether the provision was applicable or not.
The authorities have only applied the contents of the provision in the
case. The assessment made only related to the question whether the
conditions in the provision were satisfied or not.
69. The Government maintain that even if the applicant is not
satisfied with the conclusion at which the authorities arrived there
was no dispute between the applicant foundation and the authorities in
the sense required for making Article 6 of the Convention applicable.
70. Setting a standard of quality as a condition for a licence,
approval or other kind of permission is very common. From the Court's
case-law it appears that a difference of opinion as to whether such a
condition is fulfilled does not necessarily give rise to a dispute in
the sense which makes Article 6 applicable. In the case of Van Marle
and others (Van Marle and others judgment, loc. cit., p. 12 para. 36),
the Court found that an assessment evaluating knowledge and experience
for carrying on a profession under a particular title is so far
removed from the exercise of the normal judicial function that the
safeguards in Article 6 cannot be taken as covering resultant
disagreements. The Court therefore found that there was not a
"dispute" within the meaning of Article 6 and thus that Article 6
was not applicable. In the Government's opinion the same reasoning
should be applied in the present case.
71. To sum up, in the Government's view, the proceedings
complained of did not involve the determination of any civil rights of
the applicant foundation. Consequently, the Government submit that
the complaint falls outside the scope of Article 6 of the Convention.
72. 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.
IV. OPINION OF THE COMMISSION
73. In its decision on the admissibility the Commission declared
admissible the applicant foundation's complaint that it 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, and
inadmissible the remainder of the application. In their observations on the
merits the Government have, as a preliminary point, submitted that no issue
remains to be examined on the merits since the applicant foundation made no
complaint on its own under Article 6 (Art. 6) of the Convention.
74. The application was lodged with the Commission in the name of the
Ingrid Jordebo Foundation of Christian Schools and Mrs. Ingrid Jordebo. It is
not in dispute that Mrs. Ingrid Jordebo has authority to represent the
applicant foundation. It is clear from the application form that a violation
of Article 6 (Art. 6) of the Convention is alleged on the basis that it was not
possible to have the right to run a school examined by a court, the
Government's decision on the matter being final. Moreover, the Government's
decision of 13 December 1984 related to the applicant foundation's appeal, and
not to any appeal from Mrs. Jordebo, against the decision of the National
Board of Education.
75. In these circumstances, the Commission concluded in its decision on
admissibility that it is required to examine the merits of the complaint that
the applicant foundation did not have access to a tribunal satisfying the
conditions of Article 6 para. 1 (Art. 6-1) of the Convention.
A. Point at issue
76. The only issue to be decided is therefore whether or not Article 6
para. 1 (Art. 6-1) of the Convention is applicable in the present case, and if
so, whether or not there has been a violation of Article 6 para. 1 (Art. 6-1)
of the Convention.
B. Article 6 (Art. 6) of the Convention
77. Article 6 para. 1 (Art. 6-1) first sentence reads as follows:
"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."
78. The applicant foundation complains that there has been a breach of
Article 6 para. 1 (Art. 6-1) of the Convention, since it did not have access to
a tribunal satisfying the conditions of that provision for the determination of
whether the Anna School should be approved for running the seventh to ninth
forms of the compulsory school.
79. The Government submit that the proceedings complained of did not
involve the determination of any civil rights of the applicant foundation and
that the complaint therefore falls outside the scope of Article 6 (Art. 6) of
the Convention.
a. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention
80. Article 6 para. 1 (Art. 6-1) would only be applicable to the proceedings
by which the applicant foundation was not approved for running the
seventh to ninth forms of the compulsory school if these proceedings
were decisive for a dispute which related to a civil right of the
foundation.
81. The concept of "civil rights and obligations" cannot be
interpreted solely by reference to the domestic law of the respondent
State, but it must be given an autonomous interpretation in the light
of the object and purpose of the Convention (see Eur. Court H.R.,
König judgment of 28 June 1978, Series A no. 27, p. 29, para. 88).
82. Consequently, it is not decisive for the application of Article 6 para.
1 (Art. 6-1) whether the issue in the present case is regarded in Swedish law
as one of private law or as one of administrative law. This does not mean that
the legislation of the State concerned is without importance. Whether or not a
right is to be regarded as "civil" within the meaning of the Convention must be
determined by reference to the substantive content and effects of the right,
and not its legal classification under the domestic law of the State concerned.
83. The Government submit that it comes within the exclusive power of a
State to decide whether or not to subject its citizens to compulsory school
education and to determine the substance of such education as well as the
manner in which it is to be given. The Government further submit that the
exercise of such power cannot be viewed as anything else than the performance
of public functions vested in the State.
84. In the judgment in the König case (see König judgment, loc. cit., p.
31, para. 92) the Court stated that the running of a private medical clinic is
a commercial activity, carried on in the private sector through the conclusion
of contracts between the clinic and its patients and resembling the exercise of
a private right in some ways akin to the right of property. The Court found
that an "activity presenting, under the law of the State concerned, the
character of a private activity cannot automatically be converted into a public
law activity by reason of the fact that it is subject to administrative
authorisations and supervision, including if appropriate the withdrawal of
authorisations, provided by law in the interest of public order and public
health". The Court concluded that the right to continue to run a private
clinic and the right to continue to exercise the medical profession were "civil
rights".
85. In the Benthem case (Eur. Court H.R., Benthem judgment of 23 October
1985, Series A no. 97), the Court found that a dispute as to the grant of a
licence to exploit an installation for delivering liquid petroleum gas as a
part of the applicant's commercial activities concerned the determination of a
"civil right". In the Pudas case (Eur. Court H.R., Pudas judgment of 27
October 1987, Series A no. 125) the Court found that a dispute relating to the
revocation of a transportation licence related to the determination of a "civil
right". It held (para. 37) that although the issuing and revocation of a
transportation licence had features of public law it affected "civil rights" in
Article 6 para. 1 (Art. 6-1).
86. According to Section 34 of the School Act, the School Board shall
approve a private school for fulfilment of the compulsory school attendance if
certain conditions have been satisfied. The Commission considers that the
right of the applicant foundation to be approved for running the seventh to
ninth forms of the compulsory school at the Anna School, if it satisfied the
requisite conditions, is essentially similar in character to the right in
question in the König case, the Benthem case and the Pudas case.
87. The Commission notes the applicant foundation's submission that the
motive for running the Anna School is essentially idealistic. Nevertheless, the
foundation has a contractual relation to each child's parents and their
financial contributions are essential for the existence of the school. The
school activities run by the foundation therefore denotes certain
characteristics similar to commercial activities. To the foundation it is a
question of financial interest whether the children can stay at the school for
the three last years of their compulsory schooling. In the Commission's
opinion the private character of the right to run a school does not change
because of the administrative supervision to which the school is subject (cf.
loc. cit., Pudas case).
The Commission has also considered the Government's argument as to the
State's powers in respect of education and teaching, and the public character
of the activities of the State in the field of education. While not
overlooking the merits of this argument, the Commission considers that it
cannot influence the private character of the school activities of the
applicant foundation.
88. The Commission finds therefore that the right in question was of a
private nature and a "civil" right for the purposes of Article 6 para. 1 (Art.
6-1) of the Convention.
89. Article 6 para. 1 (Art. 6-1) of the Convention guarantees to everyone,
who claims that an interference by a public authority with his "civil rights"
is unlawful, the right to submit that claim to a tribunal meeting the
requirements of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R., Le Compte,
Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20 para.
44). The claim or dispute must be "genuine and of a serious nature" (see Eur.
Court H.R., Benthem judgment loc. cit., p. 14, para. 32). There must be a
direct relationship between the dispute and a civil right. A tenuous
connection or remote consequences do not suffice for Article 6 para. 1 (Art.
6-1). Civil rights and obligations must be the object - or one of the objects
- of the dispute ("contestation"), and the result of the proceedings must be
directly decisive for such a right (see Le Compte, Van Leuven and De Meyere
judgment, loc. cit., p. 21, para. 47).
90. As regards the question whether there was any dispute ("contestation")
in the present case, the Commission notes that there was a disagreement between
the foundation and the Swedish authorities as a result of the refusal of the
authorities to approve the foundation for running the seventh to ninth forms
during the school year 1983/84.
91. The Government contend that the disputed decision in the present case
did not directly affect the arguably private aspects of the activities carried
out by the applicant foundation, as its only implication was that the teaching
intended to be offered would not be recognised as satisfying the conditions of
compulsory school education. The possible effects the decision might have had
on a civil right is in the Government's view merely indirect and too remotely
related to the object and purpose of the proceedings.
92. The Commission finds, contrary to what the Government submit, that the
disputed decision was directly decisive for a civil right of the foundation.
Although the decision did not prohibit the foundation from running the seventh
to ninth forms of the Anna School, it made it difficult for the school to do so
in practice, since the school would not attract pupils if the education offered
was not approved for fulfilment of the school attendance obligation.
93. The Commission also finds that there was a "genuine" and "serious"
dispute at the time, in particular as to whether the handling of the matter by
the Deputy School Director had been in accordance with the School Act. The
foundation has further alleged that, if it was not to be subject to an
arbitrary assessment, an examination had to be made together with the
corresponding classes of the public schools, since they also engaged
non-qualified teachers (cf. para. 19 above). The dispute which arose under
Swedish law was whether the facts of the case were such that the authorities
were justified, having regard to Section 34 of the School Act, to conclude that
the foundation should not be approved for running the upper stage of the
compulsory school. The Commission considers that the dispute which thus arose
is not of the same nature as in the Van Marle and others case (Eur. Court
H.R., Van Marle and others judgment of 26 June 1986, Series A no. 101) referred
to by the Government. In that case the dispute related to whether or not the
applicants were qualified as accountants. In the present, however, the dispute
relates to the lawfulness under Swedish law of the refusal to approve the Anna
school for running the seventh to ninth forms of the compulsory school.
94. Accordingly, the Commission finds that Article 6 para. 1 (Art. 6-1) was
applicable to the dispute which arose over the refusal to approve the applicant
foundation for running the upper stage of the compulsory school.
b. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
95. It must next be examined whether the applicant foundation had the
possibility of submitting the dispute over the refusal to approve it for
running the seventh to ninth forms of the compulsory school to a tribunal
satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the Convention.
96. It is recalled that the School Board's decision of 23 August 1983 was
subject to appeal to the National Board of Education and that a further appeal
could be lodged with the Government. The Government rejected the appeal on 13
December 1984. No appeal lay against the Government's decision.
97. In the Commission's opinion the proceedings before the Government did
not constitute proceedings before a tribunal within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
98. The Commission also finds, as the Government admit, that the applicant
foundation did not have access to any court or other tribunal satisfying the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
99. It follows that the applicant foundation did not have at its disposal a
procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) in respect
of the dispute which arose over the refusal to approve the Anna School for
running the upper stage of the compulsory school.
Conclusion
100. The Commission concludes, by 15 votes to 1, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Opinion dissidente de M. Martinez
1. Je ne partage pas l'avis selon lequel la Suède a commis une
violation de l'article 6 par. 1 de la Convention.
2. Avec la majorité de la Commission j'admets que dans le cas
d'espèce il a existé une contestation dans laquelle ont fait défaut
et le tribunal et la procédure garantis par l'article 6 par. 1 de la
Convention.
Mon dissentiment vient seulement du fait que je ne crois pas
que cette contestation ait eu directement pour objet un droit de
caractère civil.
3. Selon l'opinion de la Cour dans son arrêt König, ce qui compte
est le caractère du droit en question. Je vais donc essayer de
montrer que le différend entre la requérante et l'Administration
suédoise n'avait pas pour objet un droit de caractère civil par sa
véritable nature.
4. Pour définir le caractère propre d'un droit civil, il faut
tenir compte de ceci : le droit civil se situe dans le domaine du
droit privé.
Il faut donc rappeler la division classique : droit public -
droit privé. Les Romains déjà avaient considéré que les institutions
juridiques ressortissent à deux grandes catégories nettement
différenciées, suivant qu'elles sont orientées vers les intérêts
publics ou vers les intérêts privés. Ulpien, dans le Digeste, dit que
le droit public ad statum rei romanae spectat et que le droit
privé ad singulorum utilitatem pertinet. Montesquieu a défini
le droit public - qu'il appelait droit politique - comme "les lois
dans les rapports qu'ont ceux qui gouvernent avec ceux qui sont
gouvernés" et le droit privé - qu'il appelait droit civil - comme "les
lois dans les rapports que tous les citoyens ont entre eux".
5. Le droit public comprend l'ensemble des règles qui gouvernent
les rapports de l'Etat et de ses agents avec les particuliers. Le but
du droit public est d'assurer la satisfaction des intérêts collectifs.
Le droit privé est l'ensemble des règles qui gouvernent les
rapports des particuliers entre eux ou avec les collectivités privées,
telles que les sociétés et les associations. Le but du droit privé
est d'assurer la satisfaction des intérêts individuels.
Cela dit, il s'avère difficile de placer dans le domaine du
droit privé le litige qui s'est élevé entre la requérante et
l'Administration suédoise. En effet, il ne s'agissait pas de savoir si
l'Administration pouvait à bon droit empêcher la requérante de passer
des contrats avec les parents des élèves ; il s'agissait de vérifier si
la requérante présentait les qualifications et les moyens nécessaires
pour se voir confier la gestion d'un service public : l'enseignement
obligatoire aux trois degrés supérieurs. Cela, à mon avis, n'est pas
une question de droit privé mais de droit public.
6. Dans le cas d'espèce, la contestation n'avait pas directement
comme objet le droit d'exercer une activité privée, du genre de celles
que la Cour a déjà examinées dans ses arrêts König, Benthem ou
Pudas. Dans notre cas, ce qui est controversé est le seul point de
savoir si la requérante satisfaisait aux conditions requises par
l'article 34 de la Loi scolaire pour pouvoir se substituer à l'école
publique aux 7ème, 8ème et 9ème degrés de l'enseignement
obligatoire. En effet, hormis cette question, la requérante était
autorisée :
a. à gérer une école privée,
b. à donner un enseignement équivalant à celui de l'école
publique du 1er au 6ème degrés,
c. à donner n'importe quel autre enseignement.
Elle ne s'est vu refuser que l'homologation de son
enseignement comme équivalant aux 7ème au 9ème degrés de l'école
publique.
7. La clef de voûte, dans cette affaire, se trouve au par. 31 du
rapport de la Commission, selon lequel la conséquence de la décision
litigieuse n'est pas que l'école est empêchée d'offrir un enseignement
privé, mais que son enseignement ne satisfait pas aux conditions de
l'enseignement obligatoire et ne peut donc remplacer celui qui est
dispensé dans les écoles publiques aux 7ème, 8ème et 9ème degrés.
Il ne s'agit pas là d'un droit de caractère civil, même si, à
défaut d'homologation, la requérante conclut moins de contrats avec
des parents d'élèves qui cherchent un enseignement équivalant aux
7ème, 8ème et 9ème degrés de l'enseignement obligatoire.
8. La contestation ne portant pas sur un droit civil, l'article 6
par. 1 ne s'applique pas et ne peut donc être violé.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
__________________________________________________________________
2 May 1985 Introduction of the application
7 May 1985 Registration of the application
Examination of admissibility
4 December 1985 Commission's deliberations and
decision to invite the Government
to submit observations on the
admissibility and merits of the
application
13 May 1986 Government's observations
6 August 1986 Applicant's reply
6 March 1986 Commission's further deliberations
and decision to declare the application
partly admissible and partly
inadmissible
Examination of the merits
1 June 1987 Applicant foundation's letter
containing observations on the merits
10 June 1987 Government's observations on the merits
11 July 1987 Commission's consideration of state
of proceedings
5 September 1987 Letter from applicant foundation
containing further observations on the
merits
8 December 1987 Commission's deliberations on the
merits, final votes and adoption of
the Report