Information Note on the Court’s case-law 5

April 1999

Martins Casimiro and Cerveira Ferreira v. Luxembourg (dec.) - 44888/98

Decision 27.4.1999 [Section II]

Article 9

Article 9-1

Manifest religion or belief

Refusal to grant the son of the applicants, Seventh Day Adventists, a general exemption on religious grounds from attending school on Saturdays: inadmissible

The applicants and their son, F., were members o f the Seventh-day Adventists, a religious body for whom Saturday is a day of total rest. The applicants sought special dispensation for their son so that he would not have to attend school on Saturdays. Although their request was turned down by the mayor, the applicants stopped taking F. to school on Saturdays. As a result, an action was brought against them in the youth court, which stayed the proceedings to give the applicants the opportunity of making a fresh request for special dispensation. That, too, was refused by the municipal council. The applicants sought judicial review of the refusals. The court of first instance dismissed their applications on the ground that while pupils might individually and on an ad hoc basis be given special dispensation fr om compulsory school attendance in order to worship or to attend religious celebrations, a general dispensation from attendance on Saturdays, which was an important part of the ordinary school week, was likely to cause excessive disruption to the timetable of the pupil concerned, the teachers and the other pupils. The court of appeal upheld that judgment. The applicants submitted that the refusal to grant them special dispensation amounted to a breach of their right to practice their religion freely.

Inadmi ssible under Article 9: Freedom of thought, conscience and religion was one of the foundations of a "democratic society" within the meaning of the Convention. It was, in its religious dimension, one of the most vital of the elements that went to make up th e identity of believers and their conception of life. The pluralism indissociable from a democratic society, which had been dearly won over the centuries, depended on it. While religious freedom was primarily a matter of individual conscience, it also impl ied, inter alia , freedom to manifest one's religion. Bearing witness in words and deeds was bound up with the existence of religious convictions. In the case before the Court, the refusal to grant special dispensation could be regarded as a restriction on the applicants’ right freely to manifest their religion. The Luxembourg authorities had considered that while special dispensation might be given on an ad hoc basis for the celebration of religious ceremonies peculiar to certain faiths, no general dispensa tion was to be given such as would adversely affect the right to education, which was protected by Article 2 of Protocol No. 1 to the Convention and whose importance in a democratic society could not be overstated. The dispensation requested by the applica nts would have had the effect of excluding the child from the normal school timetable as Saturday was one of the days of the school week. The court of first instance had stated that dispensation of that sort would have infringed the rights of the other pup ils, too, as it was potentially disruptive of the school system. States had a duty to ensure that children were able to exercise their right to education. Furthermore, where the parents’ right to respect for their religious convictions, rather than enhanci ng the child’s right to education, came into conflict with it, the interests of the child prevailed. Under the circumstances, the Court held that the statutory provision that precluded the applicants from being granted general dispensation from the obligat ion to ensure that their son, a minor, attended school on Saturdays was justified for the protection of the rights and freedoms of others, notably the right to education: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summ ary by the Registry does not bind the Court.

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