Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19844/92

by Renata LEUFFEN

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

9 July 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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 February 1992

by Renata LEUFFEN against the Federal Republic of Germany and

registered on 13 April 1992 under file No. 19844/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1959 and residing in

Düsseldorf (Federal Republic of Germany). She is a freelance

journalist and writer.

The applicant is the mother of a son, born in 1984.

On 13 January 1992 the Düsseldorf District Court (Amtsgericht)

decided to appoint the Youth Office of the City of Düsseldorf as tutor

(Pfleger) for her son as far as the child's attendance in a school or

school- kindergarten is concerned and to establish an expert medical

and psychiatric opinion of the child on the ground that the applicant

refused to send her son to school and insisted on imparting teaching

and education herself at home.

The applicant's appeal against this decision was dismissed by the

Düsseldorf Regional Court (Landgericht) on 23 January 1992.

On 12 February 1992 the applicant appealed to the Düsseldorf

Court of Appeal (Oberlandesgericht). The Court of Appeal dismissed her

appeal on 27 March 1992. The Court recalled that the State had an

obligation to impart an adequate education to children. It held that

the applicant's refusal to send her son to school was an abuse of her

right to care for her son and gravely endangered his mental and

emotional health and development. Compared to the education provided

by a single person, conventional schools had the advantage of

contributing to the child's ability to interact successfully on a

social level, and of allowing access to high schools, universities or

a profession.

A constitutional appeal lodged by the applicant with the Federal

Constitutional Court (Bundesverfassungsgericht) was rejected on 10

April 1992 as offering no prospects of success. The Federal

Constitutional Court held that the partial withdrawal of the

applicant's right to care for the child was justified in the interests

of the child and was also the least restrictive means available to

secure the child's education.

The Court stressed the danger of concentrating education and

teaching on one person and the importance for children to have school

certificates and learn social behaviour. To leave the situation as it

was could have irreversible consequences for the child. Having regard

to the applicant's conduct, it was not in breach of constitutional

rights to partially withdraw from the applicant the care for the child

and to appoint a guardian. Moreover the applicant had the possibility

of choosing a school corresponding as far as possible to her religious

beliefs. The Court underlined that no decision as to separation of her

child from her has been taken.

On 12 May 1992 the Youth Office of the City of Düsseldorf as

tutor applied to the competent court to decide that the child may be

taken away from the mother by force. Apparently the hearing is

scheduled for 15 July.

The tutor has informed the applicant that he has enrolled her son

at a Catholic elementary school.

COMPLAINTS

The applicant complains of the court decisions by which she is

refused to provide personally an education to her son at home and by

which a guardian had been appointed with a view to securing her son's

school attendance. The applicant submits that God has given her the

exclusive responsibility and authority to educate her child. She

believes it a sin for her to send her son to a traditional school.

She stresses that she is the sole person being able to teach her

son in accordance with his needs and abilities. She expresses her

concern over the academic and moral decline in public schools where her

son would be taught obscenities and become a victim of violent

behaviour and negative socialisation pressure. According to her,

formal schooling amounts to child abuse, disaster for the child's

mental and physical health and to frustration and failure. Her son

would not survive compulsory school attendance. The applicant contends

that her rights and freedoms under the Convention have been and

continue to be prejudiced by the firm intention of the German

authorities to subject her son to compulsory school attendance.

This is even more unjust having regard to the fact that the

children of some religious groups are exempted from this obligation and

that various other countries recognise the parents' right to teach

their own children at home.

The applicant alleges a violation of Articles 3, 6, 7, 8, 9, 13,

14 and 17 of the Convention and of Article 2 of Protocol No. 1.

THE LAW

1. The applicant complains of the court decisions by which the care

of her son was partially committed to a tutor with a view to securing

the child's attendance in a school or school-kindergarten and to

establish an expert medical and psychiatric opinion of the child. She

alleges that these decisions were in breach of her right to ensure her

son's education and teaching at home in conformity with her own

religious and philosophical convictions.

Article 2 of Protocol No 1 (P1-2) provides that :

"No person shall be denied the right to education. 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 education and teaching in conformity with

their own religious and philosophical convictions."

The Commission notes that the first sentence of Article 2 of

Protocol No 1 (P1-2) enshrines the fundamental right of the child to

education. This right by its very nature calls for regulation by the

State, regulation which may vary in time and place according to the

needs and resources of the community and of individuals. It goes

without saying that such regulation must never injure the substance of

the right to education nor conflict with other rights enshrined in the

Convention (Eur. Court H.R., Judgment "Relating to certain aspects of

the laws on the use of languages in education in Belgium" of 23 July

1968, p. 32, para. 5).

The second sentence of Article 2 (Art. 2) recognises the role of

the State in education as well as the rights of parents. The provision

aims at safeguarding pluralism in education, which is essential for the

preservation of the "democratic society" as conceived by the

Convention. In view of the power of the modern State, it is above all

through State teaching that this aim must be realised (see Eur. Court.

H.R., Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976,

Series A n° 23, p. 25, para. 50).

In the Commission's view it follows that Article 2 of Protocol

No 1 (P1-2) does not prevent the State from establishing compulsory

schooling, be it in State or private schools of satisfactory standard,

and that verification and enforcement of educational standards are an

integral part of that right (see No 10233/83, dec. 6.3.84, D.R. 37 p.

105).

The State, in fulfilling the functions assumed by it in regard

to education and teaching, must take care that information or knowledge

is conveyed in an objective, critical and pluralistic manner. The

State is forbidden to pursue an aim of indoctrination that might be

considered as not respecting parents' religious and philosophical

convictions. That is the limit that must not be exceeded (see above

mentioned Eur. Court H.R., Kjeldsen, Busk Madsen and Pedersen judgment,

Series A n° 23, p. 26, para. 53).

The applicant is of the opinion that compulsory schooling of her

son would violate her right to ensure his education in conformity with

her religious and philosophical convictions as guaranteed by Article

2 of Protocol No. 1 (P1-2).

However, the European Court of Human Rights has held that the

convictions of parents must not conflict with the fundamental right of

the child to education, the whole of Article 2 (Art. 2) being dominated

by its first sentence (Campbell and Cosans judgment of 25 February

1982, Series A no 48, p. 16, par. 36). This means that parents may not

refuse the right to education of a child on the basis of their

convictions.

The applicant is of the opinion that she can ensure the education

of her son by herself. The Commission notes that the national

authorities have in detail evaluated the possibilities in this respect

and have come to the conclusion, with the help of an expert, that

education only by the applicant of her son would be damaging for the

child. For this reason a public authority was appointed tutor to

arrange for his attendance at a school. It is clear that the tutor

must choose a school which as far as possible meets the applicant's

convictions. In fact the son has been enrolled at a Catholic elementary

school - the applicant being a practising Catholic.

Under these circumstances the Commission finds that the rights

of the applicant under Article 2 of Protocol No. 1 (P1-2) were not

violated by the decisions complained of. The Commission notes in that

context that, as the Federal Constitutional Court has underlined, no

general decision as to separation of the child from the applicant has

been taken. The Commission also underlines that as far as the

implementation of the measures for securing school attendance of the

applicant's son are concerned the authorities are under an obligation

to make sure that only such force is being used as is absolutely necessary.

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

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

Convention.

2. The applicant also complains that the court decisions given in

her case violate her right to respect for family life and her right to

freedom of thought, conscience and religion, as guaranteed by Articles

8 and 9 (Art. 8, 9) of the Convention.

However, the Commission finds that the interference with the

right of the applicant under Article 8 (Art. 8) is justified under

Article 8 para. 2 (Art. 8-2) for the same reasons as outlined above as

being provided for by law and necessary for the protection of the right

of the child to education. Assuming that an interference with the

rights of the applicant under Article 9 (Art. 9) could be in issue the

same reasons would apply.

Therefore, this part of the application must likewise be rejected

as being manifestly ill-founded in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant finally alleges that she is the victim of a

violation of Articles 3, 6, 7, 13, 14 and 17 (Art. 3, 6, 7, 13, 14, 17)

of the Convention.

The Commission has examined the applicant's separate complaints

as they have been submitted by her. However, after considering this

part of the application as a whole, the Commission finds that it does

not disclose any appearance of a violation of the rights and freedoms

set out in the Convention or its Protocols and in particular in the

above Articles.

It follows that the remainder of the application is also

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) (C.A. NØRGAARD)

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LEUFFEN v. GERMANY

LEUFFEN v. GERMANY