THE FACTS

The facts of the case, as submitted by the applicants, may be

summarised as follows:

The applicants, who are husband and wife, are Danish citizens living

in Ã…lborg. Mr Pedersen was born in 1930 and is a parson. Mrs Pedersen

was born in 1932 and is a school teacher by training. They have five

children, three of whom are of school age. Two of the children now

attend private schools while one of them attends the municipal school

of Poul Paghs Gade in Ã…lborg. The eldest child moved from that school

to a private boarding school in 1972.

The applicants' first submission, dated 7 October 1972,  was submitted

jointly with Mr and Mrs Arne Busk Madsen whose application has been

registered separately under Application No. 5920/72.

In their application form the applicants refer to the legislation which

provides for compulsory sex education integrated with the teaching of

other subjects in Danish schools (2). They state that they want this

law amended in such a way that sex education is taught as a special

subject and that attendance of such lessons becomes voluntary, or that

sex education is given as part of the subject of "family knowledge".

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(1)  A similar decision was taken the same day by the Commission on

the admissibility of Application No 5920/72, Arne and Inger Busk Madsen

against Denmark.

(2)  In a letter dated 2 April 1973 the applicants have specified that

the law concerned is the Act of 27 May 1970 to amend the Act relating

to Public Schools (lov om aendring af lov om folkeskolen).

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The applicants maintain that the present system constitutes a violation

of the State's obligation under Article 2 of Protocol No. 1 to respect

the right of parents to ensure education and teaching in conformity

with their own religious beliefs.

In their above-mentioned submission of 7 October 1972, the applicants

state that, since the entry into force of the legislation providing for

compulsory sex instruction integrated with the teaching of other

subjects in the publicly maintained schools, there has been a strong

opposition against this gross interference

with the right of the home. This enables the educationalist, against

the will of the parents, to interfere with the private life of the

family. However, the respondent Government have not been prepared to

make any concessions.

The applicants first point out that they do not claim to have a

monopoly with regard to their children which is borne out by the fact

that their children attend public schools but they do, however, claim

that, when Article 26 of the Universal Declaration of Human Rights and

Fundamental Freedoms gives the parents a prior right to choose the kind

of education given to their children, this means that the State is not

allowed to take the place of the parents with regard to views on life.

The applicants also refer to a circular issued by the Minister of

Education (on 15 June 1972) according to which greater emphasis is

placed on imparting factual information. They maintain, however, that

a teacher cannot teach these matters objectively since his ethical

views necessarily influence the instruction. Under the new rules, it

is even possible to use photographs showing erotic situations without

the parents having a right to have their children exempted. A

difference of opinion expressed by the parents and the teacher on these

matters may put the child into a difficult situation and such a

conflict may destroy the child's views on love life.

In this connection, the applicants object to the selection of books

made by the School Board for the use in  the Poul Paghs Gade School in

Ã…lborg, in particular two specific books whose attitude to ethics is

in conflict with the views encouraged in the applicants' homes.

The applicants further complain that sex education begins too early.

Under the law it is possible to start such instruction as early as the

first school year. They also alleged that, as a result of being the

only subject possible of integration into the teaching of other

subjects, sex education is given an unnaturally special position. This

also makes it possible to "overdose" the subject. The applicants would

be prepared to accept the instruction if it were given as part of the

teaching of "family knowledge", if this were optional from the first

school year. The Danish authorities have, however, rejected this

proposal.

According to the applicants the compulsory, integrated sex education

in the public schools, leaves the door open for a one-sided tyranny in

the schools. Progressive teachers may rely on the Act in order to give

instruction of a kind objected to by the parents.

The applicants also refer to a statement by the Minister of Education

in reply to a petition signed by about 36,500 persons requesting that

sex education should be voluntary. The Minister apparently suggested

that private schools should be set up but this idea is rejected by the

applicants because of the costs and inconvenience involved. Moreover,

in their views private schools tend to create inequality within the

local community.

The applicants emphasise that they are not opposed to the children

being given a regular answer on their questions when these arise

naturally. They oppose, however, extensive instruction which allows for

the indoctrination with ethical views to which many parents object.

In their submission of 7 October 1972 reference is made to a complaint

made, in March 1972, by the present applicants and certain other

parents concerning the use of certain books on sex educational the Poul

Paghs Gade School in Ã…lborg. These books have apparently been approved

by the local School Board in consultation with the teachers at the

school. After certain further correspondence the Education and Culture

Committee of the Northern Jutland County Council (Nordjyllands amtsråds

undervisnings - og kulturudvalg) decided, on 16 June 1972, to uphold

the School Board's decision concerning teaching aids for sex education

at the school. In particular, the Committee took into account that one

of the books complained of should only be used by the teacher and that

a section of the book dealing with the technique of coitus should not

be mentioned by the teacher in the class. This decision was confirmed

by the Minister of Education on 13 March 1973. In a long letter of the

same date the Minister himself explained to the applicants the

historical background to the legislation and the Executive Order and

Circular concerning sex education issued by the Ministry on 15 June

1972 and replied to certain further questions raised by the applicants

in their correspondence.

Under cover of a letter dated 22 March 1972 the Commission's Secretary

sent the applicants a copy of the Commission's decision of 16 December

1972 on the admissibility of the Kjeldsen case (Application No

5095/71). The Secretary asked whether the applicants had brought any

court proceedings under Article 63 of the Danish Constitution in order

to exhaust the domestic remedies available to them. He also asked the

applicants to state whether they wished to maintain their application.

In a letter, dated 2 April 1973, the applicants confirmed that they

maintained their application. They also confirmed that they had not

brought any proceedings under Article 63 of the Constitution but

pointed out that they had duly appealed to the Minister of Education

in accordance with the relevant statutory provisions governing

complaints against decisions by the municipal school authorities.

In their application form the applicants referred to the Kjeldsen case

and suggested that their application should be treated as an

"enclosure" to that case.

PROCEEDINGS

The application was introduced with the Commission on 7 October 1972

and registered on 20 November 1972. It was examined by a group of three

members of the Commission on 24 May 1973. The Commission considered the

group's report on 29 May 1973 and took a partial decision on the

admissibility of the application. (1)

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(1)  See page 93.

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The Commission first observed that the applicants' complaint under

Article 2 of Protocol No. 1 related both the Act of 27 May 1970, which

laid down the principle of compulsory sex education and authorised the

Minister of Education to issue regulations as to how this instruction

should be given, and also to the directives issued and other

administrative measures taken by the Danish authorities regarding the

manner in which such education should be given including the use of

certain textbooks. The Commission further observed that similar

complaints under Article 2 of Protocol No. 1 have been raised before

it in Application No 5095/71 introduced against Denmark by Viking and

Annemarie Kjeldsen. It then recalled the terms

of its decision of 16 December 1972 declaring part of that application

admissible. However, the Commission found that, by failing to bring

court proceedings under Article 63 of the Danish Constitution, the

applicants had not complied with the condition in Article 26 of the

Convention as to the exhaustion of domestic remedies, insofar as their

"application relates to the directives issued by the Minister of

Education and other administrative authorities regarding the manner in

which the sex education referred to in the 1970 Act should be carried

out". This part of the application was therefore rejected under Article

27 (3), of the Convention. On the other hand, the Commission concluded

that there was no effective domestic remedy available with regard to

the provisions of the 1970 Act embodying the principle of compulsory

sex education. It followed that, in this respect, the application could

not be rejected as inadmissible under Article 26 of the Convention. The

Commission then stated that the complaint raised important and complex

issues under Article 2 of Protocol No. 1 whose determination should

depend on an examination of the merits of the case.

The Commission continued by stating that, having regard to the

similarity of the issues raised in the present application and in

Application No 5095/71, it had naturally examined the question of the

admissibility of the present case in the light of its above decision

of 16 December 1972. The Commission pointed out that the applicants had

confirmed that they had not brought any proceedings under Article 63

of the Danish Constitution in respect of their present complaints. The

Commission's findings in the decision of 16 December 1972 as regards

the application of the domestic remedies' rule in Article 26 of the

Convention therefore applied to the present case. It followed that this

application must also be declared inadmissible under Article 27 (3),

of the Convention insofar as it related to the directives issued and

other administrative measures taken by the Danish authorities regarding

the manner in which the sex education referred to in the 1970 Act

should be carried out.

The Commission went on to say that, for the same reasons, the present

application  could apparently not be rejected as inadmissible under

Article 26 of the Convention or on any other ground, insofar as the

applicants complain that the Act of 27 May 1970 providing for

obligatory sex education in the public schools constitutes a violation

of Article 2 of Protocol No.1. The Commission therefore decided to give

notice, in accordance with Rule 45, 3 b) of the Commission's Rules of

Procedure, of this part of the application to the respondent Government

and to invite the Government to state whether, in view of the

similarity between the issues raised in the present case and in

Application No 5095/71, they were prepared to waive their right to

submit observations in writing on the admissibility issue and to accept

that the applications be declared admissible without oral explanations

being given by the parties at a hearing. In the meanwhile, the

Commission adjourned its examination of this part of the application.

In a separate decision, also dated 29 May 1973, the Commission adopted

the same procedure with regard to the application introduced by Mr and

Mrs Arne Busk Madsen (No 5920/72).

The Agent of the respondent Government replied in a letter of 27 June

1973 that his Government were prepared to waive their right to submit

observations in writing on the admissibility issue and to accept that

both applications be declared admissible without oral explanations

being given by the parties at a hearing.

The applicants, who had been informed of the Commission's decision of

29 May 1973, did not make any comments on the procedure suggested by

the Commission.

THE LAW

1.   The applicants have complained that the system of compulsory sex

education in Danish public schools violates Article 2 of Protocol No.

1 (P1-2) which provides that "In the exercise of any functions which

it assumes in relation to education and to teaching, the State shall

respect the right of parents to ensure such education and teaching in

conformity with their own religious and philosophical convictions".

2.   In its partial decision of 29 May 1973 on the admissibility of

the application the Commission referred to the similarity between the

issues raised in the present case and Application No 5095/71 (Kjeldsen

v. Denmark) which was declared partly admissible on 16 December 1972.

The Commission observed that, for the same reasons indicated in that

decision, the present application could apparently not be rejected as

inadmissible under Article 26 (Art. 26) of the Convention or on any

other ground, insofar as the applicants complain that the Act of 27 May

1970, providing for obligatory sex education in the public schools,

constitutes a violation of Article 2 of Protocol No. 1 (P1-2). The

Commission therefore decided to give notice, in accordance with Rule

45, 3 b) of the Commission's Rules of Procedure, of this part of the

application to the respondent Government and to invite the Government

to state whether, in view of the similarity between the issues raised

in the present case and in Application No 5095/71, they were prepared

to waive their right to submit observations in writing on the

admissibility issue and to accept that the application be declared

admissible without oral explanations being given by the parties at a

hearing.

3.   In a letter dated 27 June 1973 the respondent Government replied

that they were prepared to accept that the application was declared

admissible without the Government having made further written or oral

submissions as to the admissibility of the case. The applicants were

informed of the Government's position but made no comments.

4.   Having noted the respondent Government's statement the Commission

now confirms that the reasons given by it for declaring Application No

5095/71 partly admissible apply with equal force to the corresponding

part of the present application.

In particular, the Commission recalls its findings in the above

mentioned decision of 16 December 1972 that the applicants' complaint

"raises important and complex issues under Article 2 of Protocol No.

1 (P1-2) whose determination should depend on an examination of the

merits of the case."

For these reasons, the Commission

DECLARES ADMISSIBLE THE APPLICATION INSOFAR AS THE APPLICANTS COMPLAIN

THAT THE ACT OF 27 MAY 1970 PROVIDING FOR OBLIGATORY SEX EDUCATION IN

THE PUBLIC SCHOOLS CONSTITUTES A VIOLATION OF ARTICLE 2 OF PROTOCOL No.

1 (P1-2).