JOINT CONCURRING OPINION OF JUDGES LEMMENS, DEDOV, SCHEMBRI ORLAND AND GUERRA MARTINS

1. It is rather unusual for the judges forming the majority of the Chamber to add something to the judgment by way of a joint concurring opinion.

We would, however, like to give a short reaction to the joint dissenting opinion of our colleagues Serghides, Keller and Poláčková.

2. We do not want to enter into a discussion of the human-rights principles to which our esteemed colleagues refer. We do not think that there are any fundamental disagreements between us on these principles.

The reason we concluded that there has been no violation of the Convention rights of the parents or the child is because of the specific circumstances of the case. There was an incident in the classroom, on the first real day of the school year. No one denied that this was a real incident, or that what happened was inadmissible.

But one should not exaggerate what went on. This was an initiative by certain parents who had met the previous week at a parent-teacher meeting. The teacher inadvertently agreed to their initiative. This was not an action initiated by the school. And, apart from the mere fact of the Russian Orthodox rite, there was in our opinion no indication of disrespect for the applicants’ beliefs (see the teacher’s and the priest’s attitude, described in paragraph 11 of the judgment).

As soon as the authorities became aware of what had happened, they condemned the fact that a religious rite had been performed without the consent of all the parents (see paragraph 68 of the judgment). That was, in our opinion, a very firm reaction. We do not see how the State could still be held responsible for a violation of the applicants’ rights after such a reaction.

3. This is, in our opinion, not a case where the fundamental principles of freedom of religion are at stake. It is a case about an error of judgment, undoubtedly, but one that – in our opinion – could have been better solved by a constructive talk between the parents and the school, rather than through bitter lawsuits brought before the domestic courts and the Strasbourg Court.

JOINT DISSENTING OPINION OF JUDGES KELLER, SERGHIDES AND POLÁČKOVÁ

1. The first and second applicants in this case are the parents of the third applicant, who began his education at a publicly-funded school in the settlement of Gribanovskiy in 2007. The family are adherents of the Church of the Community of Christ, of which the second applicant is a priest. Despite this, the child was obliged to participate in a Russian Orthodox rite in his new classroom on his very first day of regular schooling.

2. It is uncontested that the parents were not notified in advance that the rite would be taking place (see paragraph 9 of the judgment). We would uphold their complaint under the second sentence of Article 2 of Protocol No. 1 and so dissent, with respect, from the majority’s conclusion to the contrary.

3. On this basis, we agree with the majority that it is unnecessary to examine separately the parents’ complaint under Article 9 of the Convention (see Denisov v. Ukraine [GC], no. 76639/11, § 139, 25 September 2018). We are conscious of the fact that Article 2 of Protocol No. 1 is in principle the lex specialis in relation to that provision (see Lautsi and Others v. Italy [GC], no. 30814/06, § 59, ECHR 2011 (extracts)).

4. The majority go on to address Article 9 as regards the child. We agree that focus on his right to freedom of religion is warranted, but the case-law of the Court does not support the majority’s approach. In our view, the Grand Chamber should chart the new course which the majority rightly desire in an appropriate future case. In the meantime, as they have seen fit to seize the initiative, we respectfully dissent from their conclusion that Article 9 was not violated in respect of the third applicant.

5. Article 2 of Protocol No. 1 requires the High Contracting Parties to respect, in the exercise of any functions which they assume in this connection, “the right of parents to ensure” that their children’s education is “in conformity with their own religious ... convictions”. Like the majority, we cannot accept the respondent Government’s contention that this provision is inapplicable. The rite, although perhaps an isolated event, took place (i) in a classroom; (ii) shortly before the start of scheduled classes; (iii) with the acquiescence of the school authorities, even if only of the teacher in charge of the new intake of pupils; and (iv) in the presence of schoolchildren of a very young and therefore impressionable age. We would stress that the undertaking freely given by the High Contracting Parties extends not merely to the curriculum that they may choose to prescribe, but to the whole “organisation of the school environment” where that is a task for the public authorities, as it is in Gribanovskiy’s municipal school no. 3 (see Lautsi and Others , cited above, § 64).

6. We will therefore turn to the question whether there has been a violation of Article 2 of Protocol No. 1. We observe that the Court has repeatedly held that the lack of a possibility to obtain full exemption from religious education classes within the curriculum gives rise to such a violation (see Folgerø and Others v. Norway [GC], no. 15472/02, §§ 96 ‑ 102, ECHR 2007 ‑ III; Hasan and Eylem Zengin v. Turkey , no. 1448/04, §§ 72-76, 9 October 2007; and Mansur Yalçın and Others v. Turkey , no. 21163/11, §§ 74-77, 16 September 2014). While the violation alleged by the parents does not concern the prescribed curriculum, the undeniably religious character of the rite means that this line of case-law is of direct relevance.

7. It is apparent from paragraphs 6 and 11 of the judgment that the teacher was aware that the parents’ religious faith was not Russian Orthodoxy. The rite was not organised spontaneously; rather, it had been arranged two days beforehand at a meeting at which the third applicant’s parents were no longer present (see paragraphs 8-11 of the judgment). In these circumstances it is unacceptable that they were not informed, in the interval between the meeting and the rite, of the decision to conduct active religious observance in the classroom contrary to their known religious convictions, so that they could decide whether to seek to have their son exempted from attendance.

8. Nothing before the Court suggests that the teacher could not have notified the parents. On the contrary, the second applicant brought his son to school on 3 September 2007, which happened to be the very date of the rite, as detailed in paragraphs 10 and 11 of the judgment. Furthermore, the decision to invite Fr M. to perform the rite of blessing was taken during the parent-teacher meeting on 1 September 2007. Given the importance of such a decision as well as the fact that some parents were absent, the school had an obligation to inform the parents about the rite in advance in order to fulfil its duty of religious neutrality . We therefore conclude that there has been a violation of Article 2 of Protocol No. 1.

9. Although the majority reject the child’s complaint under Article 9, in addressing it they affirm that children have the right to freedom of religion (compare Grzelak v. Poland , no. 7710/02, 15 June 2010). So much is beyond cavil. However, it must be acknowledged that it has been the Court’s practice to examine cases such as the present one solely in terms of Article 2 of Protocol No. 1, thereby disregarding that right on the part of children (see Papageorgiou and Others v. Greece , nos. 4762/18 and 6140/18, §§ 35-38, 31 October 2019, with further references).

10. This practice is to be deprecated. It seems obvious to us that a child in such a situation should be protected by his or her own rights under Article 9 and should therefore be able to rely on freedom of religion in his or her own name. The Court’s practice to date is inconsistent with the special character of the Convention – Article 1 of which obliges the High Contracting Parties to secure the right to freedom of religion to “everyone” within their jurisdiction – as well as with the role it confers on the Court in Article 34, according to which “any person” who “claim[s] to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto” may make an application (compare Sabeh El Leil v. France [GC], no. 34869/05, § 48, 29 June 2011).

11. In the present case, since there are no countervailing factors, it is also in the child’s “best interests” (in the “flexible and adaptable” sense of this concept recognised by the United Nations Committee on the Rights of the Child in General Comment No. 14 of 2013, CRC/C/GC/14) for the Court to consider his or her individual rights rather than ignoring them in favour of the rights of the parents. The rights asserted are not identical, even if they are to be read in harmony (see Kjeldsen, Busk Madsen and Pedersen v. Denmark , 7 December 1976, § 52, Series A no. 23). In any event, it cannot be presumed that the child’s interests and those of the parents coincide (see, mutatis mutandis , X v. Latvia [GC], no. 27853/09, § 100, ECHR 2013). Importantly, General Comment No. 14 emphasises that there is an inextricable link between the “best interests” principle and the right of children to be heard.

12. The Court has often stated that the broad consensus in support of the paramountcy of the best interests of children extends to international law (see, for example, Strand Lobben and Others v. Norway [GC], no. 37283/13, § 204, 10 September 2019). It follows that this principle should be understood as a central aspect of the proper administration of justice in international courts and tribunals. Moreover, its centrality must be kept in mind throughout litigation involving children even when, as here, that litigation continues after they have attained majority.

13. In the interests of the proper administration of justice, and to be true to its role in the Convention system, the Court ought to adjust its practice. But Article 30 of the Convention makes it clear that only the Grand Chamber may properly depart from existing case-law. The many years that have passed since this application was lodged make it unreasonable for the Chamber to relinquish jurisdiction and thus incur further delay. We would consequently have preferred to adjudicate this case without deviating from the Court’s current practice, that is, solely by reference to Article 2 of Protocol No. 1.

14. Admittedly the Court’s previous approach, seen from the child’s individual perspective, has certain disadvantages. However, the present case also highlights the weaknesses of an individualised approach. It seems quite difficult to establish what the child was feeling and experiencing at the material time of the facts. The child’s recorded statements (see paragraph 23 of the judgment) should also be read with caution. As witnesses, children are in a world of their own which does not correspond to that of adults. Last but not least, it was of course not the child who initiated the domestic proceedings and ultimately brought the case before the Court.

15. Nevertheless, in the light of the majority’s decision to rule on the merits of the child’s complaint under Article 9, it is appropriate for us to briefly explain why, even if he was not pressured either to kiss the crucifix or to make the sign of the cross, we are of the opinion that his right to freedom of religion was violated.

16. The third applicant was only seven years old at the time of the rite. At that age, he could be easily influenced (see, mutatis mutandis , Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001 ‑ V). In addition, as mentioned in paragraphs 10 and 11 of the judgment, the rite was conducted on his first day of regular schooling, a milestone in one’s life. Owing to these circumstances, he had not yet acquired the necessary experience to identify the rite as exceptional, and hence distinct from the schedule of a normal school day. Further, the child did not have the maturity to dissociate the school authorities from the rite. As a result, he experienced distress as witnessed by his parents (see paragraph 14 of the judgment). We therefore argue that the third applicant was particularly likely to be influenced.

17. This was all the more so given that active religious observance cannot be equated to the presence of an essentially passive symbol (contrast Lautsi and Others , cited above, § 72). In casu , the rite took on a particularly active dimension: the priest not only sang prayers but also distributed paper icons that were meant to be taken back home by the children. In our humble opinion, this aspect of the ceremony has an arguably more lasting effect on children than a prayer or incense and holy water.

18. Moreover, as mentioned in paragraph 11 of the judgment, the teacher explicitly drew the priest’s attention to the presence of a student “of another faith” (compare Grzelak , cited above, § 92). The majority conclude in paragraphs 74 and 75 that the State concerned did not breach its duty of religious neutrality, and justify this on the grounds that the third applicant’s involvement in the rite of blessing was limited to his “mere presence”. We respectfully disagree as regards the following aspects.

19. Firstly, as the majority rightly state, the priest had been informed by the teacher that a pupil was of a different faith. However, the teacher did not consider it appropriate to explain the situation to the third applicant and to offer him the possibility of leaving if he felt uncomfortable. On the one hand, the behaviour of the priest cannot be attributed to the school. On the other hand, the teacher should not have delegated her responsibility to the priest either. She was primarily responsible for ensuring that the school maintained religious neutrality in this situation.

20. Secondly, we respectfully disagree with the majority’s emphasis on the “mere presence” required of the third applicant. In a similar case, the Supreme Court of the United States ruled that the child’s mere presence during a religious observance, that is to say, being in attendance and remaining silent, signified more than respect in a school context. Indeed, “[w]hat matters is that ... a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it” (see the judgment of 24 June 1992, Lee v. Weisman , 505 U.S. 577, Justice Kennedy writing for the majority, at 593).

21. Thirdly, the majority state in paragraph 73 that there is no right “not to witness individual or collective manifestations of other religious or non ‑ religious beliefs and convictions”. Although we agree on the substance, we find it relevant to temper this statement, given the particular school context in which the facts took place. In our opinion, pupils are particularly likely to be influenced, as they find themselves in a hierarchical relationship with the school authorities and their teachers. Witnessing religious observance in those circumstances therefore has a greater impact on children than in a peer-to-peer relationship. The US Supreme Court rightly stated that “[p]rayer exercises in elementary and secondary schools carry a particular risk of indirect coercion” and that “[w]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy” (see Lee v. Weisman , cited above, 592).

22. Finally, we also disagree with the reference to the blessing as simply an isolated incident (see paragraphs 66 and 76 of the judgment) and therefore of a negligible character. We once again refer to the US Supreme Court: “The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers ... are of a de minimis character. To do so would be an affront to the rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the intrusion is greater than the two minutes or so of time consumed for prayers like these” (see Lee v. Weisman , cited above, at 594).

23. Regard being had to the above, and considering the age of the third applicant, the circumstances of the first day of school, and the fact that he had virtually no possibility of escaping the religious act, the State – in our humble opinion – violated its duty of religious neutrality.

24. This application was lodged as far back as 2009; the then seven ‑ year-old child is now an adult. Although the judgment that has finally emerged reflects his best interests in one narrow respect, which we hope the Grand Chamber will ponder in due course, the majority far too readily dismiss the merits of his complaint and that of his parents. (As regards the former, see, in particular, the very short reasoning in paragraphs 72 et seq. of the judgment; without examining the legal basis for the interference or the public interest, or whether the interference was necessary in a democratic society, the judgment refers essentially to the main arguments already mentioned under Article 2 of Protocol No. 1.) We respectfully dissent.