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, Ã

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