Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23380/94

by C.J., J.J. and E.J.

against Poland

The European Commission of Human Rights sitting in private on

16 January 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 October 1993

by C.J., J.J. and E.J. against Poland and registered on 3 February 1994

under file No. 23380/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

30 November 1994 and the observations in reply submitted by the

applicant on 27 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The first applicant, a Polish citizen born in 1952, is an

archaeologist, residing in Warsaw. He is introducing the application

on behalf of his two daughters, J., born in 1981, and E., born in 1975,

as well as in his own name. The second and third applicants attend

state schools in Warsaw, namely the primary and secondary school,

respectively. They are represented before the Commission by Mr.

Wladyslaw Czaplinski, an associate professor of law in the Polish

Academy of Science.

Particular circumstances of the case

Upon her father's instruction the second applicant did not

attend religious tuition at the primary school in Warsaw. The

religious instruction class was placed in the middle of other lessons

during the day. As no course on ethics was organised in her school,she

had to spend this time alone in the school corridor. She had to

explain repeatedly to the passing teachers why she was not with her

class and tell them that this was because she did not attend religious

instruction. Once a teacher in the school common room told her that

it would be better for her if she attended the religious instruction.

Other pupils asked her incessantly why she did not attend the course.

This broke her resolve and she finally decided, against her parents'

will, that she wished to attend religious instruction with the other

pupils. The director of the school refused to grant the first

applicant's request to alter the timetable and to put religious

instruction either at the beginning or at the end of the school day so

that the second applicant might come to school later or leave earlier.

She felt rejected and grew increasingly silent and depressed due to the

psychological pressure exerted upon her, apparently by her peers and

teachers.

The second applicant's school report for the school year

1992/1993 did not list the subject "religion/ethics" and contained no

mark for either of these subjects, apparently as she was attending the

course for a period insufficiently long to receive a mark.

The third applicant was permitted by her parents to take her own

decision as to whether she wished to attend religious instruction or

the course on ethics at her secondary school in Warsaw. She decided

to take a course on ethics. In her school report for the school year

1992/1993 a mark was given for the course of "religion/ethics".

Relevant domestic law and practice

I.

Provisions on freedom of religion and conscience are laid down

in the Freedom of Conscience and Religion Act of 1989 which reads:

:

Article 1:

"1. Poland (...) shall secure to its citizens freedom of

conscience and religion.

2. Freedom of conscience and religion includes freedom to choose

one's religion or belief and freedom to manifest one's religion

or belief, either alone or in community with others, in private

and in public. (...)"

Article 2:

"In the exercise of their freedom of conscience and religion

citizens may in particular: (...)

4) raise their children in conformity with their religious

convictions,

5) remain silent as to their religion or convictions, (...)"

:

Artykul 1:

"1. Polska (...) zapewnia kazdemu obywatelowi wolnosc sumienia

i wyznania.

2. Wolnosc sumienia i wyznania obejmuj* swobod* wyboru religii

lub przekonan oraz wyrazania ich indywidualnie i zbiorowo,

prywatnie i publicznie. (...)"

Artykul 2:

"Korzystaj*c z wolnosci sumienia i wyznania obywatele mog* w

szczególnosci: (...)

4) wychowywac dzieci zgodnie ze swoimi przekonaniami w sprawach

religii,

5) zachowywac milczenie w sprawach swojej religii lub przekonan,

(...)"

II.

The vast majority of schoolchildren attend state schools.

In August 1990 the Ministry of Education issued two Ordinances,

introducing religious instruction in Roman Catholicism and other

religions in public schools on a voluntary basis. A declaration was

to be made by parents, in primary schools, and pupils, in secondary

schools, to confirm whether the pupils were going to attend the

classes. Separate school reports were to be issued with marks for

religious instruction.

III.

The Ombudsman brought a constitutional complaint to the

Constitutional Court (Trybunal Konstytucyjny), challenging the

conformity of certain provisions of those Ordinances with the law. The

Ombudsman considered that they breached the statutory guarantee of the

right to remain silent with regard to one's religion and convictions,

as provided for in the Freedom of Conscience and Religion Act. He

contended that those Ordinances disclosed a breach of this guarantee

as their implementation would result in an obligation to reveal

religious convictions of the parents and children.

In a decision of 30 January 1991 the Constitutional Court found

that voluntary religious tuition at school does not breach the Freedom

of Conscience and Religion Act. The Court considered that by declaring

one's will to send a child to religious classes a person is not obliged

to reveal his beliefs since a non-believer could order his child to

attend such classes and a believer could decline to do so. The Court

also considered that the right to remain silent with regard to one's

religion and convictions may not be interpreted as an obligation to

remain silent. The Court stressed that declaring one's wish to attend

religious instruction was not mandatory.

IV.

On 15 April 1992 the Minister of Education published an Ordinance

on the organisation of religious classes in public schools. The

Ordinance derogated from the 1990 Ordinance referred to above. It

provided for participation in these classes on a voluntary basis, a

course on ethics being organised on a voluntary basis for those pupils

who do not wish to attend religious classes and for marks for

"religious instruction/ethics" to be included in the official school

reports. Article 9 of the Ordinance provides that the school report

should not contain any data which would disclose whether a pupil

attended a course in any particular religion or in ethics "in order to

eliminate any possible opportunities for intolerance" ("w celu

wyeliminowania ewntualnych przejawów nietolerancji").

V.

In August 1992 the Ombudsman filed a constitutional complaint

against this Ordinance with the Constitutional Court. The Ombudsman

submitted that including marks for religious instruction in an official

school report breaches the principle of separation of the Churches and

the State and infringes the right to remain silent about one's beliefs

and convictions.

In a further decision of 30 April 1993 the Constitutional Court

found that including marks for "religion/ethics" in official school

reports did not reveal whether a pupil had attended one course or the

other.In view thereof, the Court found it unnecessary to examine the

question whether the impugned Ordinance of 15 April 1992 had infringed

the right to remain silent regarding one's religion and convictions.

COMPLAINTS

1. The applicants complain under Articles 8, 9 and 14 of the

Convention that the manner in which religious instruction is organised

in public schools is inconsistent with the prohibition of

discrimination on grounds of religion.They complain about the contents

of the second and third applicants' school reports for the 1992/93

school year.They contend that their right to respect for their private

life and their freedom of thought and conscience have been breached

since they were obliged to make a public declaration about their

convictions in religious matters.

The applicants maintain that these provisions of the Convention

guarantee a right to remain silent about one's convictions in such

matters.The applicants complain that they were in fact obliged to

disclose their views, while those pupils whose school reports contain

a mark for "religion/ethics" were not.

The applicants submit that they are placed in a disadvantageous

position since there is discrimination on religious grounds between

those whose school reports certify that they have attended the

religious instruction and those who have not.In particular future

employers and other third parties are informed that the second

applicant did not attend religious instruction.

2. The applicants further complain under Article 3 of the Convention

that the second applicant has been subjected to degrading treatment

through psychological pressure resulting in her depression, nervousness

and a feeling of being rejected.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 October 1993 and registered

on 3 February 1994.

On 5 September 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

30 November 1994, after an extension of the time-limit fixed for that

purpose. The applicants replied on 27 February 1995.

On 13 April 1995 the Commission granted the applicants legal aid.

THE LAW

1. The applicants complain under Articles 8, 9 and 14

(Art. 8, 9, 14) of the Convention that the manner in which religious

instruction is organised in public schools is inconsistent with the

prohibition of discrimination on grounds of religion. They complain

about the contents of the second and third applicants' school reports

for the 1992/93 school year. They contend that their right to respect

for their private life and their freedom of thought and conscience have

been breached since they were obliged to make a public declaration

about their convictions in religious matters, whereas those pupils

whose school reports contain a mark for "religion/ethics" were not.

Article 8 (Art. 8) of the Convention reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

Article 9 (Art. 9) of the Convention provides:

"1. Everyone has the right to freedom of thought, conscience

and religion; this right includes freedom to change his religion

or belief and freedom, either alone or in community with others

and in public or in private, to manifest his religion or belief,

in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be

subject only to such limitations as are prescribed by law and are

necessary in a democratic society in the interests of public

safety, for the protection of public order, health or morals, or

for the protection of the rights and freedoms of others."

Article 14 (Art. 14) of the Convention reads:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

a) The Government submit that Poland recognised the competence of

the Commission to receive individual applications with respect to any

act, decision or event occurring after 30 April 1993. The school

reports of the second and third applicants constitute administrative

decisions issued after this date. Thus the Commission is competent

ratione temporis to examine the complaints insofar as they relate to

the contents of these school reports. It lacks competence ratione

temporis to consider any complaints relating to events before

30 April 1993.

The applicants first submit that the school reports were issued

after 30 April 1993.Moreover, the long-term results of their contents

are and will be felt after that date. Therefore the Commission is

competent ratione temporis to examine the case.

The Commission considers that in the light of the declaration by

which Poland recognised the Commission's competence to examine

individual petitions against Poland, it is competent to examine the

applicants' complaints insofar as they relate to occurrences after

30 April 1993.

b) Under Article 26 (Art. 26) of the Convention the Commission may

only deal with a matter after all domestic remedies have been

exhausted.

The Government submit that there is no individual constitutional

complaint to the Constitutional Court under Polish law. Insofar as the

applicants rely on the decisions of the Constitutional Court, they did

not constitute individual decisions in their case, but related in

abstracto to the compatibility of the relevant laws with the

Constitution. Therefore the complaints as regards the organisation of

religion classes in public schools and the content of school reports

constitute in fact an actio popularis.

The Government further submit that, as regards the alleged

pressure exerted upon the second applicant, apparently by her teachers

and peers, the applicants failed to exhaust domestic remedies. They

could have requested that criminal proceedings be

instituted. Alternatively, they could have complained either to the

headmaster of the school or to the local school administration.

Admittedly, the first applicant complained orally to the headmaster

about the timetable of the classes, in particular about the fact that

the religious instruction was not planned for the beginning or end of

the day. The headmaster informed him that any changes in the timetable

were impossible for organisational reasons. The applicants did not

pursue the matter before any higher authorities. Moreover, they did

not complain about the alleged pressure on the second applicant.

The applicants submit that they invoked the judgments of the

Constitutional Court only to present the legal aspects of their

situation to the Commission. They submit that they did not have at

their disposal any remedies which would enable them to submit their

complaints under the Convention to any competent authority, whether it

be the Supreme Administrative Court, or the ordinary courts. The first

applicant submitted his objections about the timetable of classes to

the headmaster of the second applicant's school. The complaint to the

school administration would have been ineffective as in this respect

the school had acted in accordance with the applicable regulations.

Moreover, the complaints procedure must be regarded as highly informal

as the obligations of parties thereto are not clearly defined by law.

The suggestion that the applicants should have requested institution

of criminal proceedings cannot be seriously considered.It was obvious

that any acts complained of, including the pressure exerted on the

second applicant by her peers and teachers, had not constituted

criminal offences. They conclude that there are no relevant domestic

remedies under Polish law.

The Commission recalls that for the purpose of complying with

Article 26 (Art. 26) of the Convention, only such remedies are to be

taken into account as offer the possibility of effective redress of the

alleged violation of the Convention (see Eur. Court H.R., Van

Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 13, para.

27).

In the present case the applicants did not have any court remedy

at their disposal. The remedies invoked by the Government concern only

the complaints relating to the timetable of classes in the second

applicant's school. They do not apply to the issue of school

reports.Insofar as the Government submit that the applicants could have

requested the institution of criminal proceedings, the Commission

observes that the acts complained of on the part of the second

applicant's teachers, peers and the school administration do not appear

to come within the scope of criminal law.

The Commission finds that it has not been established that the

applicants had any effective remedy at their disposal which would have

enabled them to put their complaints under the Convention to the

domestic authorities. Accordingly, the application cannot be declared

inadmissible for non-exhaustion of domestic remedies.

2. The applicants complain under Article 8 (Art. 8) of the

Convention that they were obliged to disclose their religious

convictions through the contents of the second applicant's school

report for the school year 1992/93.

The Commission has examined separately the situation of the

various applicants.

The Government submit that Article 8 (Art. 8) is not applicable

to the circumstances of the present case.

a) In respect of the first applicant, the Commission observes that

he invokes a right to silence as regards his convictions on religious

matters as being protected by Article 8 (Art. 8) of the Convention.

The Commission considers in this respect that the right to silence on

which he relies is of a personal character. From the behaviour of the

applicant's daughters, the second and third applicants, it cannot be

inferred directly what are the first applicant's religious beliefs.

The first applicant himself was not obliged to make any declaration as

to his own convictions.

As regards the third applicant, the Commission notes that she

herself decided that she did not want to attend religious instruction,

but the course on ethics. Her school report for the school year

1992/93 contains a mark for "religion/ethics". Thus it cannot be

determined on the basis of her report whether she attended classes in

one subject or the other.

In these circumstances the Commission finds that an examination

of the first and third applicants' complaint does not disclose any

appearance of a violation of Article 8 (Art. 8) of the Convention.

Insofar as the first and third applicants also rely in respect of their

complaint on Article 14 read together with Article 8 (Art. 14+8) of the

Convention, the Commission considers that no separate issue arises.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

b) As regards the second applicant, the Government submit that her

school report for 1992/93 was issued on an old form, which did not list

"religion/ethics" as a subject. Thus it is impossible to determine

whether she attended any of the courses, and, consequently, what are

her religious convictions.As she was only twelve years old when the

impugned report was issued, it was unlikely that it would adversely

affect her situation as regards her future employment. Even assuming

that private employers may discriminate against the applicant on the

basis of her report, the liability for such acts would not be imputable

to the State. In any event, the applicants disregard the fact that

discrimination on religious grounds is illegal in Poland as being

prohibited by domestic law and the Conventions of the International

Labour Organisation. Therefore the danger of discrimination on

religious grounds, as alleged by the applicants, is in practice of

minor importance.

The applicants submit that the second applicant was obliged to

disclose her religious beliefs through the contents of her school

report for the school year 1992/93.She was thus "negatively

stigmatised" by being marked as a non-believer. This situation is

clearly incompatible with the Freedom of Conscience and Religion Act

which provides that citizens have a right to remain silent as to their

religion or convictions. It was the State which, by passing ordinances

in contravention of this Act, allowed this situation to arise. A school

report is a public document to be presented to various authorities or

employers and it should not contain any information concerning such a

private sphere as that of religious convictions. Its contents may cause

hostility towards the applicant, thus placing the applicant in a

disadvantageous position. However, it is this "stigmatisation" in

itself which already constitutes a breach of the right to respect for

private life, notwithstanding any possible further consequences. This

"stigmatisation" must be examined in the current social and religious

context in Poland. It cannot be disputed in this context that non-

believers and non-Catholics are often discriminated against and

regarded with hostility, not only by private persons but also by the

highest State authorities, as witnessed by certain widely publicised

statements of the former Polish President.

The Commission notes that the second applicant's school report

was issued on an old form which did not list "religion/ethics" as a

subject. Consequently, it cannot be discerned on the basis of her

report whether she had attended any of these courses. A general

knowledge or a comparison with other school reports would be necessary

to draw any conclusions as to the applicant's choice of subjects.

The Commission further considers that the rights protected by

Article 8 (Art. 8) of the Convention are subject to limitations and are

not of an absolute character. The act of choice of religion or ethics

as a school subject by its very nature entails, to a certain extent,

a declaration as to the applicant's preferences, without necessarily

revealing his or her religious beliefs or denomination. Moreover, the

school report concerned covered only one school year. This report not

being a final one, certifying completion of primary school, was not a

document which would have to be presented to various authorities or to

educational bodies for the purposes of the next stage of education.

Consequently, its contents would not have an impact on the applicant's

interests. The Commission further observes that the applicants have

not alleged that the second applicant has suffered any disadvantage on

account of the situation complained of. The Commission concludes that

the second applicant failed to show that she had suffered

inconveniences which would reach a sufficient degree of seriousness to

be considered as lack of respect for or interference with her rights

under Article 8 (Art. 8) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

c) In support of her complaint the second applicant has also relied

on Article 8 read together with Article 14 (Art. 8+14) of the

Convention.

The Government submit in this respect that, as the second

applicant's school report did not reveal her religious convictions, no

issue arises under Article 8 read together with Article 14 (Art. 8+14)

of the Convention.

The second applicant contends that she was obliged to disclose

her religious convictions through the contents of her school report,

whereas those pupils who attended religious instructions were not, as

their reports contained marks for "religion/ethics".

The Commission considers that no separate issue arises under

these provisions of the Convention. It follows that this part of the

application is also manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicants also rely in respect of their complaints on

Article 9 (Art. 9) of the Convention.

The Government submit that the third applicant cannot claim to

be a victim of a breach of the Convention as her school report for the

school year 1992/93 does not disclose which of the courses she

attended, as it contains a mark for "religion/ethics".

The Commission recalls that, according to its case-law, Article

9 (Art. 9) of the Convention affords protection against religious

indoctrination by the State. Article 9 (Art. 9) primarily protects the

sphere of personal beliefs and religious creeds, i.e. the area which

is sometimes called the forum internum. It protects acts which are

intimately linked to these attitudes such as acts of worship or

devotion which are aspects of the practice of a religion or belief in

a generally recognised form (No. 11308/84, Dec. 12.3.86, D.R. 46 p.

200). In particular, the Commission found that there was no

interference with the right safeguarded by Article 9 (Art. 9) of the

Convention in a case in which participation in a course in religious

knowledge was compulsory in State schools but the applicant was granted

certain exemptions from that part of the instruction (No. 10491/83,

Dec. 3.12.1986, D.R. 51 p. 41).

In the present case the Commission considers that the first

applicant, the father, was not indoctrinated in any way or prevented

from expressing his religious convictions.As regards the second and

third applicants, they were not obliged to attend religious

instruction, which was given on a voluntary basis. Neither were they

prevented from expressing their views concerning their beliefs. The

second applicant moreover decided herself during the school year

1992/93 to attend religious instruction, whereas the third applicant

chose to attend a course on ethics.

In conclusion, the Commission finds no indication of interference

with the applicants' rights and freedoms guaranteed by Article 9

(Art. 9) of the Convention.It follows that this part of the application

is manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. The second applicant finally complains under Article 3

(Art. 3) of the Convention that she been subjected to degrading

treatment through psychological pressure by her peers and teachers,

resulting in depression, nervousness and a feeling of being rejected.

Article 3 (Art. 3) of the Convention reads:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission observes that Poland recognised the competence of

the Commission to receive individual applications "from any person,

non-governmental organisation or group of individuals claiming to be

a victim of a violation of the rights recognised in the Convention

through any act, decision or event occurring after 30 April 1993". The

events complained of occurred during the school-year 1992/93, i.e. for

the most part before this date. Therefore the Commission is not

competent to examine complaints relating to alleged violations of the

Convention by acts, decisions or events that have occurred prior to

this date.

As regards the events after this date, the Commission notes that

the actual circumstances of the treatment complained of with respect

to the second applicant cannot be established with sufficient certainty

on the basis of the applicant's submissions. The Commission accepts

that the child might have felt emotional distress, but considers that

the treatment complained of did not attain the threshold of inhuman or

degrading treatment within the meaning of Article 3 (Art. 3) of the

Convention as established in the case-law of the Convention organs (cf.

Eur. Court H.R., Ireland v. United Kingdom judgment of 18 January 1979,

Series A no. 25, p. 56, para. 162).

It follows that this complaint is in part outside the competence

ratione temporis of the Commission and therefore incompatible with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. As regards the events after 30 April

1993, this complaint is manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S.TRECHSEL)

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C.J., J.J. AND E.J. v. POLAND

C.J., J.J. AND E.J. v. POLAND

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