JOINT DISSENTING OPINION OF JUDGE S WILDHABER, LORENZEN, BÃŽRSAN, KOVLER, STEINER, BORREGO BORREGO, HA JI YEV AND JEBENS

We do not share the opinion of the majority, expressed above, that there has been a violation of Article 2 of Protocol No. 1 in this case. Our re asons for this are as follows.

First of all, it is necessary to clarify the scope of the case before the Court. On 26 October 2004 the Court declared the application inadmissible as far as the children were concerned, and also declared inadmissible the parents ’ complaints about the possibilities and modalities for obtaining a partial exemption from the KRL subject. The inadmissibility decisions were based on failure to exhaust domestic remedies in that the children had not been parties to the domestic proceedings and the applicant parents ’ lawsuit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally and against the impossibility of obtaining a ful l exemption from the subject.

The scope of the case before the Court is therefore more limited than that reviewed on the merits by the U nited N ations Committee in the parallel case brought by four other sets of parents who had been parties to the same domestic proceedings and by their children. The Committee had declared the case admissible as a whole and had reviewed not only the children ’ s concrete situation , but also the complaint about partial exe mption (see paragraphs 43- 45 of the judgment ). Therefore, our conclusions s hould not be viewed as contradicting those reached by the U nited N ations Committee in the other case.

As pointed out in the admissibility decision of 14 February 2006, the limitations as to the scope of the case that follow from the inadmissibility decision of 26 October 2004 do not prevent the Court from considering the general aspects of the partial- exemption arrangement in its examination of the complaint regarding the refusal of full exemption. However, it would not be in conformity with the limited scope of the case, as clarified above, if the Court were to underta ke an evaluation of the partial- exemption scheme or even discuss how it worked in practice. In our view, the majority of the Court overstep the limitations as to the scope of the c ase when discussing the partial- exemption scheme and how it wor ks in detail (see paragraphs 97 ‑ 100 of the judgment ). The case before the Court is clearly only the KRL subject in general, with a possibility of a partial, but not a full exemption. This coincides with the issue that was presented before the Supreme Court. Consequently, our examination will not deal with the applicants ’ arguments based on the textbooks, which were not binding on the teachers and represented only one of several possible teaching aids.

In our opinion, a review of the case requires a twofold approach, namely, in the light of the requirements of modern Norwegian society and with its history as an important background. On the one hand, the increasing number of Norwegian citizens from different ethnic backgrounds and with different religious beliefs calls for inclusive measures, with a common education in religions and ethics in schools. On the other hand, when devising the c urriculum, one cannot overlook the many centuries of Norwegian history. Christianity has a very long tradition in Norway , both as a religion and a schoo l subject (see paragraphs 9- 10 of the judgment ). This aspect must be reflected in the curriculum, which must at the same ti me be inclusive and broad.

Article 2 of the Constitution guarantees freedom of religion in its first paragraph, but states in its second paragraph that the Evangelical Lutheran Religion is to be the State ’ s off icial religion. No less than 86 % of the population are members of the State Church (see paragraph 9 of the judgment ). Furthermore, the second paragraph confers on its adherents an obligation to educate their children likewise. It is, however, no longer accompanied by any sanctions and in the legal doctrine today is not regarded as a legal obligation (see Johs. Andenæs and Arne Fliflet, Statsforfatningen i Norge , 10 th edition, 2006, pp. 391- 92).

Unlike the majority, who do not take a stance on this, we find it necessary to address the question whether the second paragraph of Article 2 of the Constitution is capable of raising an issue under Article 2 of Protocol No. 1 or Article 9 of the Convention. In our opinion, it is not. The notion of pluralism embodied in these provisions should not prevent a democratically elected political majority from giving official recognition to a particular religious denomination and subjecting it to public funding, regulation and control. Conferring a particular public status on one denomination does not in itself prejudge the State ’ s respect for parents ’ religious and philosophical convictions in the education of their children, nor does it affect their exercise of freedom of tho ught, conscience and religion.

We are not persuaded by the applicants ’ argument that the mention in section 2-4 (3) that the tea ching should take as a starting- point the Christian object clause in section 1-2(1) gave the subject a strong Christian leaning. As was clear from the wording of the latter provision, the object – to “help give pupils a Christian and moral upbringing” – was contingent on the parents ’ “agreement and cooperation” (see paragraph 22 of the judgment ). The provision made no exception to the rule laid down in the preceding paragraph that the KRL subject was an ordinary school subject that should not be taught in a preaching manner. It suggests no departure from the requirement that the teacher should present all the different religions and philosophies from the standpoint of their particular characteristics and apply the same pedagogical principles to the teaching of the different topics. These principles applied across the board to all aspects of the curriculum, including activities such as prayers, psalms, the learning of religious texts by heart and the participation in plays of a religious nature.

While Christianity represented a greater part of the c urriculum than other world religions and philosophies, it should be emphasised that the latter, covering a wide spectrum of world religions and philosophies, constituted roughly half, or at least a major part, of the subject (see paragraph 23 of the judgment ). We see no reason to doubt that the aims set out in items (i) to (iii) – to transmit knowledge about Christianity and other world religions and philosophies – served to forward a further aim, stated in item (v): to “ promote understanding, respect and the ability to maintain a dialogue between pe ople with different perceptions of beliefs and convictions ” ( ibid. ). The notion of knowledge went hand in hand with mutual understanding and respect and with intercultural dialogue.

Furthermore, it should be stressed that the aim in item (iv) – to promote understanding and respect for values – embraced not just Christian, but also humanist values. This was indeed reflected in the curriculum, which laid down “Development and moral awareness” as an objective for grades 1 to 7, from the angle “ Me and others” for grades 1 to 4 and “Values and Choices” for grades 5 to 7, and “Philosophical Interpretations of Man – values and norms” for grades 8 to 10.

Against this background, we do not find that the legal framework implied qualitative differences regarding the teaching of Christianity as compared with that of other religions and philosophies. The fact that Christianity was given priority is true only as far as the quantity of the different religions and other elements of the KRL subject is concerned. Furthermore, it is important to note tha t Christianity is not only the S tate religion of Norway , but also forms an important part of Norwegian history. In our opinion, the KRL subject clearly fell within the limits of the competence of the Contracting States under Article 2 of Protocol No. 1 (see the reference to Kjeldsen, Busk Madsen and Pedersen v. Denmark (7 December 1976 , § 53 , Series A no. 23) in paragraph 84 (g)).

Furthermore, we do not agree tha t the partial- exemption scheme gives reason to reach a different conclusion. On the contrary, the possibility of obtaining a partial exemption from the KRL subject takes into account the needs of parents who belong to religions other than Christianity or to no religion at all. Under section 2-4(4) “a pupil shall , on the submission of a written parental note, be granted exemption from those parts of the teaching in the particular school concerned that they, from the point of view of their own religion or philosophy of life, consider as amounting to the practi ce of another religion or adherenc e to another philosophy of life”.

In our view, it was not unreasonable to expect that paren ts who might want an exemption sh ould take appropriate steps to inform themselves about the contents of the subject, by for instance consulting the curriculum. Nor do we find anything abnormal or intrusive about the requirement to give reasons. It is not uncommon that in their relations with the authorities citizens are asked to give certain information, even of a sensitive personal nature, when seeking exemption from a general obligation. The fact that such a possibility is more frequently solicited by some groups than by others does not in itself mean that the exemption scheme is arbitrary. In this instance, no grounds had to be given for a parental notice of a request for an exemption from activities such as prayers, psalms, the learning of religious texts by heart and participation in plays of a religious nature. Grounds had to be given if the request concerned other aspects of the curriculum but with the sole purpose of enabling the school to assess whether the parent held a reasonable perception that the teaching would amount to the practice of or adherence to another religion or philosophy of life. This was not tantamount to requiring the parents to disclose their own conviction. In this connection it should be borne in mind that, under Article 2 of Protocol No. 1, the question is whether the teaching would be contrary to the parents ’ “convictions”, a term that is not synonymous with the words “opinions” and “ideas” but denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Valsamis v. Greece , 18 December 1996 , § 25, Reports of Judgments and Decisions 1996-VI ).

In the light of these considerations, we do not find t hat the arrangement for a partial exemption entailed an excessive or unreasonable burden for parents who wished to make a request for an exemption, transgressing the margin of appreciation of the respondent State under Article 2 of Protocol No. 1, as interpreted in the light of Articles 8 and 9 of the Convention.

Moreover, certain safeguards existed in respect of decisions taken by the school authorities on parental notice of a request for a partial exemption. Such decisions could be appealed against to the National Education Office and, ultimately, to the national courts (see point 8 of the citation in paragraph 48 of the judgment ) .

We have further taken note of the provision in section 2-4(4) applying to situations where a partial exemption has been requested, namely that “the school shall as far as possible seek to find solutions by facilitating differentiated teaching within the school curriculum” (see paragraph 23 of the judgment ). A detailed outline with examples of how differentiated teaching was to be implemented may be found in Circular F-03-98, from which it can be seen that the teacher was to apply, in cooperation with the parents , a flexible approach, having regard to the parents ’ religious or philosophical affiliation and to the kind of activity in issue. We note in particular that for a number of activities, for instance prayers, the singing of hymns, church services and school plays, it was proposed that observation by attendance could suitably replace involvement through participation, the basic idea being that, with a view to preserving the interest of transmitting knowledge in accordance with the curriculum, the exemption should relate to the activity as such, not to the knowledge to be transmitted through the activity concerned (see paragraph 48 of the judgment ). We find no reason to question this approach, which was a matter of expediency that fell within the national margin of appreciation as to the planning and setting of the curriculum.

Against this background, we are satisfied that the respondent State, in fulfilling its functions in respect of education and teaching, had taken care that information or knowledge included in the curriculum of the KRL subject was conveyed in an objective, critical and pluralistic manner. It could not be said to have pursued an aim of indoctrination contrary to the parents ’ right to respect for their philosophical convictions and thereby transgressing the limits implied by Article 2 of Protocol No. 1.

Accordingly, the refusal to grant the applicant parents a full exemption from the KRL subject for their children did not entail a violation of Article 2 of Protocol No. 1.

[1] . The abbreviation used by the Committee for the KRL subject.