Abstract
Religions have always constituted an omnipresent phenomenon in all societies. Over the past almost 300 years, public schools have also emerged as a necessary component of a modern State. Since religious freedom assumes diversity and public schooling must maintain a certain degree of uniformity, a clash between conflicting approaches and demands becomes unavoidable. It is the function of the state to provide for a solution and, in the European legal space, it is the function of supranational jurisdictions to watch over state action affecting individual rights.
This article is partly based on: Garlicki and Jankowska‐Gilberg 2011.
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Notes
- 1.
Appl. No. 14307/88, Kokkinakis v. Greece (ECtHR 25 May 1993) para 31.
- 2.
Appl. No. 5493/72, Handyside v. United Kingdom (ECtHR 7 December 1976) para 48.
- 3.
Mahoney 1998, p. 1.
- 4.
“It is the essence of the national margin of appreciation that, when different opinions are possible and do exist, the international judge should only intervene if the national decision cannot be reasonably justified” (Appl. No. 17419/90, Wingrove v. United Kingdom (ECtHR 25 November 1996), the concurring opinion of Judge Bernhardt). See also Villiger 2007, p. 624–626.
- 5.
Garlicki 2012, p. 727 et seqq.
- 6.
See Appl. No. 10233/83, Family H. v. United Kingdom (ECommHR 6 March 1984); Appl. No. 17678/91, B.N. and S.N. v. Sweden (ECommHR 30 June 1993); Appl. No. 35504/03, Konrad v. Germany (ECtHR 11 September 2006).
- 7.
Joined Appl. No. 7511/76, 7743/76, Campbell and Cosans v. United Kingdom (ECtHR 25 February 1982) para 41.
- 8.
Appl. No. 2126/64, Belgium Linguistic Case (ECtHR 23 July 1968) para 32.
- 9.
Appl. No. 5926/72, Kjeldsen and Others (ECtHR 7 December 1976) para 53.
- 10.
Appl. No. 5926/72, Kjeldsen and Others (ECtHR 7 December 1976) para 50: “In its investigation as to whether Article 2 of Protocol no 1 has been violated, the Court cannot forget, however, that the functions assumed by Denmark in relation to education and to teaching include the grant of substantial assistance to private schools. Although recourse to these schools involves parents in sacrifices […] the alternative solution it provides constitutes a factor that should not be disregarded in this case”.
- 11.
It should be recalled that in Kjeldsen, the Court addressed the compatibility of the sex education with parents’ rights under Art. 2 of Protocol No. 1. The applicants claimed that integrated and compulsory sex education, as introduced into State schools, was contrary to the beliefs they hold as Christian parents. The question, therefore, was not whether and how religion can be taught in public schools, but – rather – what are the limitations in teaching non‐religious subjects that may offend religious convictions of the parents.
- 12.
Appl. No. 7798/08, Savez Crkava “Riječ života” and Others v. Croatia (ECtHR 9 March 2011) para 57. Nevertheless, in this case, the Court found a violation of Art. 14 (equality) as the Croatian regulations had been applied in a discriminatory manner.
- 13.
In Appl. No. 45216/07, Appel‐Irrgang v. Germany (ECtHR 20 October 2009), the Court upheld the system, adopted in Berlin, that provided for a compulsory course in ethics (religious instruction was also offered at the school premises but only as a supplementary option).
First, the Court disagreed with the applicants’ argument that the ethics course constituted a non‐neutral form of secular indoctrination. The Court analysed the content and structure of the program and arrived at the conclusion that both, the aims and the message of the course is conform with the requirements of pluralism and objectivity. The Court noted that the course “does not attach particular weight to any particular religion or denomination and its goal is to convey certain basis values common for all students”.
Secondly, the Court rejected the argument that the course did not reserve sufficient space for information about Christian religion, contrary to the historical position of this religion in Germany. The Court confirmed the Folgerø approach that national tradition may justify more detailed presentation of the dominant religion. However, this principle cannot be interpreted as establishing an obligation of all states to do so. These decisions belong to the State’s margin of appreciation.
Finally, the Court did not accept the argument that the very introduction of a mandatory course in ethics violated religious convictions of the applicants. The Court applied a twofold test: 1) whether the course was structured in a way that offered a priority to a particular religion; 2) whether it promoted a fight against the existing religions, in particular – Christianity. Negative response to both questions convinced the Court that there had not been any violation of the Convention.
- 14.
Appl. No. 15472/02, Folgerø and Others v. Norway (ECtHR 29 June 2007).
- 15.
The Norwegian regulation provided that all students of elementary and secondary schools have to take classes on Christianity, Religion and Philosophy (KRL) and allowed for partial exemptions from participation upon a reasoned request of parents.
- 16.
See Appl. No. 15472/02, Folgerø and Others v. Norway (ECtHR 29 June 2007) para 84.
- 17.
Appl. No. 15472/02, Folgerø and Others v. Norway (ECtHR 29 June 2007) para 89.
- 18.
Appl. No. 15472/02, Folgerø and Others v. Norway (ECtHR 29 June 2007) para 94.
- 19.
See Appl. No. 15472/02, Folgerø and Others v. Norway (ECtHR 29 June 2007) para 95–100.
- 20.
Appl. No. 1448/04, Hasan and Eylem Zengin v. Turkey (ECtHR 9 October 2007).
- 21.
Appl. No. 1448/04, Hasan and Eylem Zengin v. Turkey (ECtHR 9 October 2007) para 54.
- 22.
Appl. No. 1448/04, Hasan and Eylem Zengin v. Turkey (ECtHR 9 October 2007) para 70.
- 23.
Appl. No. 1448/04, Hasan and Eylem Zengin v. Turkey (ECtHR 9 October 2007) para 76.
- 24.
Appl. No. 21163/11, Mansur Yalçın and Others v. Turkey (ECtHR 16 September 2014) para 84. The Court limited its judgment to Art. 2 of Protocol No. 1 and regarded it as “not necessary” to deal with the claim that also Art. 9 read in conjunction with Art. 14 had been violated (para 80). The latter holding provoked a (quite convincing) dissent of three judges (A. Sajó, N. Vucinić and E. Kūris).
- 25.
Appl. No. 23380/94, C.J., J.J. and E.J. v. Poland (ECommHR 16 January 1996); Appl. No. 40319/98, Saniewski v. Poland (ECtHR 26 June 2001); Appl. No. 7710/02, Grzelak v. Poland (ECtHR 15 June 2010). Poland is a predominantly Roman‐Catholic country. Under the Polish system, there are separate classes for each denomination represented by more than three pupils of a particular school. Pupils (parents) opt for one of the courses by submitting so‐called “positive declarations”. For pupils who do not wish to follow any of the religion courses, alternative course of ethics must be provided. A grade (mark) for those courses is included into the yearly school reports as well as into the final reports confirming the conclusion of a given level of schooling (i. e. elementary school, gymnasium and liceum). Grades (marks) obtained for religious instruction or ethics is counted towards the “average mark” obtained by a pupil in a given school year. It is provided that school reports contain a separate rubric “religion/ethics”; therefore it is not possible to determine whether a pupil followed one of the courses on religion or the course of ethics. The problem is that, in some schools, the course of ethics is not provided (because of a very limited number of interested pupils) and, in consequence, the yearly school report of pupils who did not attend the available course on Catholic religion may contain a straight line in the rubric “religion/ethics”. This leaves a message that a pupil did not follow a course on the Catholic religion, and – most probably – was not a member of the Roman‐Catholic Church.
- 26.
Appl. No. 14307/88, Kokkinakis v. Greece (ECtHR 25 May 1993) para 48.
- 27.
E. g. Appl. No. 11674/85, Stevens v. United Kingdom (ECommHR 3 March 1986): male students may be required to wear a tie at school.
- 28.
The problem has also been addressed in respect of non‐educational environment. The general position of the Court is that restrictions must meet requirements of Art. 9.2 of the Convention.
Those restrictions may be, in the first place, justified by necessities of public safety. The Court accepted regulations requiring removal of a religious dress for a security check in an airport (Appl. No. 35753/03, Phull v. France ([ECtHR 11 January 2005]) or in a consulate (Appl. No. 15585/06, El Morsli v. France [ECtHR 4 March 2008]) as well as imposing obligation to appear bareheaded on identity photos for use on official documents (Appl. No. 24479/07, Mann Singh v. France [ECtHR 11 June 2007]).
Also requirements of public safety and protection of the rights of others may constitute valid grounds for restriction (see Appl. No. 48420/10, 59842/10, 51671/10 and 36516/10, Eweida and Others v. United Kingdom [ECtHR 15 January 2013]), where the Court, heavily relying on the proportionality analysis, accepted a ban of wearing a Christian cross around the neck by nurses in geriatric hospitals, but rejected a similar ban imposed on British Airways personnel).
The most recent (albeit quite controversial) position was adopted by the Grand Chamber in Appl. No. 43835/11, S.A.S. v. France (ECtHR 1 July 2014). The Court considered the French ban on wearing burka and nijab in public places. The Court held that the ban served a legitimate aim, namely to ensure the observance of the minimum requirements of life in society as part of the “protection of the rights and freedoms of others” (para 140). As to the proportionality, the Court attached “some significance that the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face” (par.151). The Court accepted the Government’s argument that the ban responded to a practice that the State deemed incompatible, in French society, with the ground rules of social communication and more broadly the requirements of “living together” (para 153). The legitimacy of such need to ensure “socialization” of every member of society, combined with the wide margin of appreciation in matters of general policy (para 154) justifies the restriction in question. See, however, quite convincing, dissenting opinion of Judges A. Nussberger and H. Jäderblom.
- 29.
See, generally, Appl. No. 14307/88, Kokkinakis v. Greece (ECtHR 25 May 1993) para 31.
- 30.
Appl. No. 42393/98, Dahlab v. Switzerland (ECtHR 15 February 2001).
- 31.
The approach adopted by the ECtHR in the Dahlab case was de facto rejected in the recent judgment of the German Constitutional Court (27 January 2015, 1 BvR 471/10 and 1 BvR 1181/10). The German Court – amending the decision of 24 September 2003, 2 BvR 1436/02 – held that a blanket ban on the Islamic scarf collides with the guarantees provided in Article 4 of the German Basic Law. Such a ban can be introduced only in particular situations of conflict which would endanger “the inner peace at school” or the principle of State neutrality. It can apply to individual persons as well as to particular schools or school districts. As the ECHR establishes only “minimal standards” of protection, a higher standard adopted by the German Constitutional Court remains in perfect harmony with Article 53 of the Convention. But, at the same time, the German decision proposes a different intellectual approach to the problem and – in the framework of the “dialogue between courts” – it will be difficult for the Strasbourg Court simply to ignore the position of the Bundesverfassungsgericht.
- 32.
Appl. No. 44774/98, Leyla Şahin v Turkey (ECtHR 10 November 2005).
- 33.
Appl. No. 44774/98, Leyla Şahin v. Turkey (ECtHR 10 November 2005) para 107 et seq.
- 34.
Appl. No. 44774/98, Leyla Şahin v. Turkey (ECtHR 10 November 2005) para 109, 111.
- 35.
Appl. No. 41340/98, 41342/98, 41343/98 and 41344/98, Refah Partisi (the Welfare Party) and Others v. Turkey (ECtHR 13 February 2003).
- 36.
Appl. No. 41340/98, 41342/98, 41343/98 and 41344/98, Refah Partisi (the Welfare Party) and Others v. Turkey (ECtHR 13 February 2003) para 111.
- 37.
Appl. No. 41340/98, 41342/98, 41343/98 and 41344/98, Refah Partisi (the Welfare Party) and Others v. Turkey (ECtHR 13 February 2003) para 114–116.
- 38.
Appl. No. 61361/11, Kurtulus v. Turkey (ECtHR 24 January 2006) – head‐scarf‐ban can be imposed on teachers at public universities; Appl. No. 26625/02, Köse and Others v. Turkey (ECtHR 24 January 2006) – ban on religious symbols can be imposed on students of public schools of religious character.
- 39.
Appl. No. 27058/05, Dogru v. France (ECtHR 4 December 2008). Confirmed in a series of decisions on 30 June 2009 (Appl. No. 43563/08, Aktas v. France; Appl. No. 14308/08, Bayrak v. France; Appl. No. 18527/08, Gamaleddyn v. France; Appl. No. 29134/08, Ghazal v. France; Appl. No. 25463/08, J. Singh v. France and Appl. No. 27561/08, R. Singh v. France).
- 40.
Thus, the controversy preceded in date the 2004 amendments to the French Education Code that generally prohibited the wearing of signs or dress by which pupils overtly manifest a religious affiliation. The substance of the 2004 regulation has not been assessed by the Strasbourg Court.
- 41.
Appl. No. 27058/05, Dogru v. France (ECtHR 4 December 2008) para 47.
- 42.
Appl. No. 27058/05, Dogru v. France (ECtHR 4 December 2008) para 77.
- 43.
Appl. No. 27058/05, Dogru v. France (ECtHR 4 December 2008) para 63.
- 44.
Appl. No. 27058/05, Dogru v. France (ECtHR 4 December 2008) para 64.
- 45.
Appl. No. 27058/05, Dogru v. France (ECtHR 4 December 2008) para 72.
- 46.
Appl. No. 43835/11, S.A.S. v. France (ECtHR 1 July 2014).
- 47.
Appl. No. 30814/06, Lautsi and Others v. Italy (ECtHR 3 November 2009; ECtHR GC 18 March 2011); see Blanke (2012), p. 1260 et seqq.
- 48.
See e. g. Sajó 2007.
References
Blanke, H.-J. (2012). Religiöse Symbole im öffentlichen Raum. In M. Sachs, & H. Siekmann (Eds.), Der grundrechtsgeprägte Verfassungsstaat. Festschrift für Klaus Stern zum 80. Geburtstag (pp. 1249–1280). Berlin: Duncker & Humblot.
Garlicki, L. (2012). Cultural Values in Supranational Adjudication: Is there a “Cultural Margin of Appreciation” in Strasbourg?. In M. Sachs, & H. Siekmann (Eds.), Der grundrechtsgeprägte Verfassungsstaat. Festschrift für Klaus Stern zum 80. Geburtstag (pp. 727–744). Berlin: Duncker & Humblot.
Garlicki, L., & Jankowska-Gilberg, M. (2011). Religiöse Aspekte im öffentlichen Schulsystem vor dem Hintergrund der Rechtsprechung des EGMR. In B. Ehrenzeller (Ed.), Religionsfreiheit im Verfassungsstaat. Zweites Kolloquium der Peter Häberle Stiftung (pp. 121–134). Zürich: Dike.
Mahoney, P. (1998). Marvellous Richness of Diversity or Invidious Cultural Relativism? Human Law Journal, 19, 1–6.
Sajó, A. (Ed.). (2007). Censorial Sensitivities: Free Speech and Religion in a Fundamentalist World. Utrecht: Eleven International Publ.
Villiger, M. E. (2007). The Principle of Subsidiarity in the ECHR. In M. G. Kohen (Ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflish (pp. 623–638). Leiden: Nijhoff.
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Garlicki, L. (2015). The Strasbourg Court on Issues of Religion in the Public Schools System. In: Blanke, HJ., Cruz Villalón, P., Klein, T., Ziller, J. (eds) Common European Legal Thinking. Springer, Cham. https://doi.org/10.1007/978-3-319-19300-7_17
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