Grzelak v. Poland (no. 7710/02) – read judgment
The European Court of Human Rights has found that A Polish boy who refused to attend religious instruction classes for reasons of personal conviction had been discriminated against human rights because of a policy of reflecting that non-attendance in school reports.
The applicant Mateus Grzelak had been brought up in a non-religious tradition by his parents who were also applicants. Mateus began his schooling at the age of seven, and in conformity with his parents’ wishes, he did not attend religious instruction. Doctrinal classes were scheduled in the middle of the school day, between various compulsory courses.
The school, despite the wish expressed by his parents, did not offer their son an alternative class in ethics. It appears that when other pupils in his class were following religious instruction the applicants’ son was either left without any supervision in the corridor or spent his time in the school library or in the school club. The refusals had been based on the lack of suitable teachers, financial reasons and insufficient numbers of pupils interested in following a course in ethics.
There was also the issue of the school report. The report for the applicant’s years of attendance at primary school contained three subjects: behaviour, religion/ethics and general education. In the place reserved for a mark for “religion/ethics” the school report had a straight line.
The Polish Constitution and the Ombudsman’s action
In 1992 the Ombudsman challenged the conformity of numerous provisions of the Education Ordinance, objecting, in particular, to the paragraph which required that a mark should be inserted in school reports for “religion/ethics”. This was unacceptable according to the Ombudsman since reports were official documents issued by State schools and the teaching of religion was the prerogative of the Church. In addition, this provision created the risk of intolerance. He further alleged that the provision in question was in breach of the constitutional principle of separation of Church and State and the principle of the State’s neutrality, as provided for in the Polish Freedom of Conscience and Religion Act.
However, in 1993 the Constitutional Court upheld for the most part the constitutionality and legality of the Ordinance. It did not accept the argument that the recording of marks for religion in school reports amounted to a breach of the principle of separation of Church and State and the principle of the State’s neutrality. The Constitutional Court further considered that the recording of such marks did not give rise to an issue as regards the right not to reveal one’s religion or convictions as provided in section 2 (5) of the Freedom of Conscience and Religion Act.
Before the Strasbourg Court, the applicants alleged that the school authorities had failed to organise a class in ethics for their son, and complained about the absence of a mark in his school reports in the space reserved for “religion/ethics”. They claimed that he had been subjected to discrimination and harassment for not having followed religious education classes. The applicants invoked Articles 9 and 14 of the Convention. The third applicant in particular referred to the specific circumstances of his case, such as the obligation to submit a declaration stating that he would not follow religious instruction, the impossibility of his following a class in ethics owing to organisational difficulties, the presence of a straight line instead of a mark on his school reports, the fact that teachers tolerated his humiliation and the failure of the State authorities to react to these problems. He stressed that the issues concerned might not appear particularly serious when viewed in isolation, but that their cumulative effect meant that the he had been deprived of his right to freedom of thought, conscience and religion.
Exhaustion of Local Remedies
The Court rejected the government’s contention that the third applicant had not exhausted local remedies (as a precondition for admission under Article 35 of the Convention). The Court noted the Constitutional Court’s findings and concluded that in these circumstances, any attempt to mount a successful challenge to the issue of the non-insertion of a mark for “religion/ethics” would have been futile.
The Court’s Findings
The Court chose to examine the third applicant’s complaints under Article 14 taken in conjunction with Article 9 of the Convention as regards the absence of a mark for the subject “religion/ethics”. In considering the scope of Article 9, the Court observed that this provision:
is a precious asset for non-believers like the third applicant in the present case. It necessarily follows that there will be an interference with the negative aspect of this provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.”(para 87)
Therefore the Court found that the absence of a mark for “religion/ethics” on the successive school reports of the third applicant fell within the ambit of the negative aspect of freedom of thought, conscience and religion protected by Article 9 of the Convention as it may be read as showing his lack of religious affiliation. In the circumstances, the Court was not satisfied that the difference in treatment between non-believers who wished to follow ethics classes and pupils who followed religion classes was objectively and reasonably justified and that there existed a reasonable relationship of proportionality between the means used and the aim pursued. The Court considered that the State’s margin of appreciation was exceeded in this matter as the very essence of the third applicant’s right not to manifest his religion or convictions under Article 9 of the Convention was infringed.
There had accordingly been a violation of Article 14 taken in conjunction with Article 9 of the Convention in respect of the third applicant.
The Right to Education under Article 2 Protocol 1: much wider discretion for States
The Court dismissed the parents’ claims that the alleged failure to provide classes in ethics disclosed a violation of their own rights under Article 2 of Protocol No. The provision of particular types of classes was well within the state’s margin of appreciation under that provision
In response to the damages claim under Article 41, the Court concluded that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage which may have been sustained by the third applicant.
Judge Björgvinsson’s dissent
In his partially dissenting judgment, Judge Björgvinsson did not agree with the majority that the pupils taking religious instruction and the third applicant were in relevantly similar or analogous positions for the purpose of Article 14:
On the one hand, there are pupils who attended religious classes and received a mark for their performance. On the other hand, there is the applicant whose parents, in the exercise of their rights to freedom of conscience and religion i.e. under Article 9 of the Convention, decided that he should not attend classes on religion and received no mark in consequence since an alternative class in ethics was not available. For the purpose of giving marks for a particular subject, which is the relevant situation in this case, pupils who do not attend a particular class are not in the same situation as those who do attend.
He did not think therefore that Article 14 was engaged in this case. Nor did he think that the state should be held responsible for the social stigmitisation suffered by the third applicant as a result of his non-attendance of religious instruction. Therefore, Judge Björgvinsson’s conclusion was that the third applicant has not substantiated the claim that, because of his school reports, he had in reality suffered, or would in the future suffer, detriment which would amount to an interference with his rights to freedom of thought, conscience and religion under Article 9 of the Convention, whether seen from its positive or negative aspect.
As we have emphasized in previous posts on Article 9, the possibility to make independent decisions about such a fundamental issue as belief in God is one of the most important human rights. According to the intervening parties in this case, in Poland the statistical data showed that there is a huge disparity between the availability of classes in religious education and classes in ethics. There are 21,370 teachers of religion and only 412 teachers of ethics. The lack of clear provisions and guidelines concerning the teaching of ethics made the right to choose it as an alternative to religious instruction only a theoretical possibility.
So, a rap on the knuckles for Roman Catholic Poland and its policy on religious education. And indeed the Court has gone out of its way in this case to the Court emphasise that Article 9 also protected non-believers:
It necessarily follows that there will be an interference with the negative aspect of this provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.(para 87)
Has there been a sea change in the Strasbourg Court’s approach to Article 9 and the prioritisation of beliefs and non-beliefs under that provision? In 2001, the Court dismissed as “manifestly ill founded” a very similar complaint against Poland about its Education Ordinance and the identification by the school reports of pupils’ non attendance of religious instruction: see Saniewski v Poland. In his note on the case in the ECHR Blog Antoine Buyse commented that the dissenting Judge Björgvinsson
quite convincingly points out that the two cases are not that different. It seems rather that the Court, nine years later simply takes a different position. It would have been clearer if it would have openly argued so.