PARTLY DISSENTING OPINION OF

JUDGE DAVID THÓR BJ ÖRGVINSSON

1. I agree with the majority that the issues arising under Article 14 in conjunction with Article 9 or under Article 9 alone only concern the third applicant, Mateusz Grzelak, and that this complaint is incompatible ratione personae with regard to the first and second applicants. I can also agree that this complaint , as far as the third applicant is concerned , should be declared admissible. Furthermore , I agree that the alleged failure to provide classes in ethics does not disclose a violation of the rights of the first and second applicants under Article 2 of Protocol No. 1 and that this complaint is manifestly ill-founded and therefore inadmissible in accordance with Article 35 §§ 3 and 4.

2. However, I disagree with the majority ' s finding that there has been a violation of Article 14 taken in conjunction with Article 9 of the Convention.

3. The complaints made by the third applicant in relation to Articles 9 and 14 are in my view somewhat unclear. Taken as a whole , they seem to be threefold. Firstly , the third applicant alleges a breach of Article 9 of the Convention since his school reports did not include a mark for “religion/ethics” with the result that he is, in his submission, forced to reveal his religious convictions each time he has to present his school reports to someone. Secondly, in spite of the repeated requests made by h is parents to the various primary and secondary schools attended by the third applicant he was unable to follow a class in ethics. Furthermore , the third applicant ha s been discriminated against o n account of his and his parent s ' convictions.

4. As to the second complaint the majority does not deal with it as a separate complaint. In my view, a lthough it would of course have been desirable to provide the t hird applicant with a course i n ethics as an alternative to religious instruction , it must be accepted that this may not be feasible for practical purposes, i.e. when, as in this case, there are not enough interested pupils. The failure to provide classes in ethics as such does not reveal a breach of either Article 14 in conjunction with Article 9 or of Article 9 alone. It follows that I will, as the majority did , confine myself to issues relating to the giving of marks for “religion/ethics” or rather the absence thereof, which is a consequence of the fact that classes in ethics were not available.

5 . When Article 14 is applied the first question that must be answered is whether there is a difference in treatment of persons in relevantly similar or analogous situations. In that regard I agree with the majority (see paragraph 90 of the judgment ) that it is appropriate, as regards the complaint about the absence of a mark, to limit the alleged difference in treatment to a comparison bet ween the third applicant, a non ‑ believer who w ished to follow classes in ethics and those pupils who followed religion classes.

6 . Concerning the question of difference in treatment , it would seem from paragraph 88 of the judgment that the majority ' s finding that such difference existed is based on the mere fact that the applicant ' s school report did not feature a mark for “religion/ethics” s ince he did not attend the relevant class , while others were awarded a mark for their performance. An additional basis for finding difference in treatment would seem to be offered in paragraph 96 where it is mentioned that there is a difference in treatment because a mark for “religion/ethics” was factored into the calculation of a pupil ' s average mark , whereas a pupil like the third applicant not attending “religion/ethics” d id not have this possibility.

7 . I t seems to me that these “differences” are not difference s in treatment of persons in relevantly similar or analogous situations, within the meaning of Article 14 of the Convention. On the one hand , there are pupils who attended religious classes and received a mark for their performance . O n the other hand , there is the applicant whose parents, in the exercise of their rights to freedom of conscience and religion i.e . under Article 9 of the Convention, decided that he should not attend classes on religion and received no mark in consequence since an alternative class in ethics was not available. For the purpose of giving marks for a particular subject, which is the relevant situation in this case, pupils who do not attend a particular class are not in the same situation as those who do attend. Also , as regards the calculation of the average mark after 1 September 2007 I fail to see a difference in treatment that would fall within the ambit of Article 14. In both groups only subjects that a pupil has completed are included in the calculation of his or her average mark. The possible positive or adverse impact of not having followed a course on religion or ethics , and not having received a mark as a result, could have on the applicant ' s average is a matter of pure speculation . Everything would hinge on his performance in the subject. The mere possibility that if he scored well enough his average might be increased cannot as such be a sufficient basis for finding a difference in treatment under Article 14. Accordingly, there is in my view, as regards marking or the calculation of a n average mark, no difference in treatment of persons in relevantly similar or analogous situations. Having come to this conclusion there is no need to examine the fact s of the case any further under Article 14 of the Convention.

8 . However, although Article 14 is not in my view engaged, the question still remains whether there has been in this case a violation of Article 9 taken alone. In assessing this the following points should be kept in mind:

i. First ly, the Court has dealt with a similar complaint in the case of Saniewski v. Poland ((dec.), no. 40319/98, 26 June 2001). In that case it was argued that the applicant ' s freedom of thought and conscience was breached sin c e the absence of a mark for a course on “religion/ethics” revealed that he did not follow the course, and thus amounted to a public statement about his beliefs or non-beliefs, to the detriment of his future educational or employment prospects. The Court declar ed the complaint manifestly ill ‑ founded (see also C.J., J.J. and E.J. v. Poland , no. 23380/94, Commission decision of 16 January 1996, DR 84, p. 46). A s will be shown below , the reasons for the decision in the Sanie w ski case are also f or most part relevant in the present case.

ii. T he second point to be made is the fact that the applicant ' s parents are declared agnostics (see paragraph 6 of the judgment ). In conformity with his parents ' wishes the th ird applicant did not attend classes in religious instruction. The applicant s claim that because of this decision the third applicant is a victim of various forms of inconvenience in the different schools he attended. However, it has not been substantiated that the school authorities can be held resp onsible for this . Furthermore, t he third applicant ' s parents are declared agnostics in a society that is predominantly C atholic. The case file does not indicate that they had specific reservations about revealing their convictions . On the contrary, the parents have visibly pressed hard to have their rights as non-believers asserted. Although of course this is their right they cannot have it both ways. Furthermore, any degree of social stigmatisation that possibly flows from such a decla ration for them selves and the third applicant is hardly more than they could reasonabl y have expected.

iii. In Poland there is no compulsory religious or ethical education in State schools. Both of t hese courses are only offered upon the request of the parents or of pupils who h ave reached the age of majority and provided there is a sufficient number of pupils interested . There are no indications in the case file that the third applicant has been subjected to any kind of indoctrination or pressure by the authorities as regards his religious or philos ophical convictions. Nor has he been prevented from expres sing his opinions on religion. ( s ee Saniewski v. Poland , cited above).

iv. In Saniewski v . Poland (cited above) it was pointed out that the impugned school report had spaces reserved for marks for certain subjects and they were often left blank or treated with a straight line . This i s due to the fact that special forms are used for school reports where certain subjects are listed which a pupil has not taken . The non-attendance of a particular class is reflected by the fact that the relevant space is left blank or a straight line is used. In Saniewski it was held that no definite conclusion could be drawn from such a procedure as to whether the applicant was un willing to attend the cours es for which there was no mark i n the report, or whether these courses simply were not organised in his school in the relevant school years. There are insufficient grounds for finding differently in the present case.

v. It has not been sufficiently substantiated by the third applicant that because of his school reports he will suffer prejudice as regards his future educational or employment prospects or that he has in any other way suffered prejudice. Consequently , the third applicant has not established that the impugned school reports have so far had or will in the future have any real material impact on his interests (see Saniewski v . Poland , cited above).

vi. Furthermore , it should be kept in mind that discrimination on religious grounds is prohibited under the domestic law of Poland . The applicant would, therefore, have a remedy to safeguard agai nst any possible risk of future prejudice the school report s might conceivably engender whether in the context of further education or public or private employment (see Saniewski v . Poland , cited above).

vii. Finally, as pointe d out by the majority in paragraph 98, the facts of the present case are different from those in Saniewski v . Poland in that the im pugned school reports cover all of the third applicant ' s primary and secondary schooling, whereas in the Saniewski case only one report was at issue . This difference is only quantitative and does not in my view render the reasoning in the Sani e w ski case irrelevant in relation to the facts of the present case.

9 . On the basis of the foregoing I respectfully submit that the third applicant has not substantiated the claim that , because of his school reports , he has in reality suffered, or will in the future suffer, detriment which would amount to an interference with his rights to freedom of thought, conscience and religion under Article 9 of the Convention, whether seen from its positive or negative aspect.

[1] . Pupils who had reached the age of majority could decide for themselves.

[2] . Data for the school year 2006/2007.

[3] . The Ordinance of the Minister of National Education and Sport of 3 December 2002 on the teaching of national or ethnic minority languages.