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1. The authors of the
communication are Ms. and Mr. Unn and Ben Leirvåg, and their daughter Guro,
Mr. Richard Jansen, and his daughter Maria, Ms. and Mr. Birgit and Jens
Orning, and their daughter Pia Suzanne, and Ms. Irene Galåen and Mr. Edvin
Paulsen, and their son Kevin Johnny Galåen. All are Norwegian citizens who
claim to be victims of violations of articles 17, 18, and 26, of the
International Covenant on Civil and Political rights by Norway. They are
represented by counsel.
THE GENERAL BACKGROUND SUBMITTED BY THE AUTHORS
2.1 Norway has a state religion and a State Church, of which approximately
86 % of the population are members. Article 2 of the Norwegian Constitution
states that the Evangelical Lutheran Church is the official state religion,
and further determines that "those of the inhabitants, who subscribe to this
have an obligation to bring up their children in the same manner".
Christianity has been taught since the general mandatory education was
introduced in 1739, but from the time of the Dissenter or Non-conformist Act
of 1845, a right of exemption for children of other faiths has existed.
2.2 At the same time, pupils so exempted had the right to participate in a
non-denominational alternative life stance subject "life stance knowledge".
However, it was not compulsory for the exempted pupils to participate or
attend tutoring in this subject, and the subject did not have the same basic
framework as other subjects, for example the number of school hours. A
number of pupils thus participated in neither the Christianity nor life
stance subjects.
2.3 In August 1997, the Norwegian government introduced a new mandatory
religious subject in the Norwegian school system, entitled "Christian
Knowledge and Religious and Ethical Education" (hereafter referred to as
CKREE) replacing the previous Christianity subject and the life stance
subject. This new subject only provides for exemption from certain limited
segments of the teaching. The new Education Act's �2 (4) stipulates that
education provided in the CKREE subject shall be based on the schools'
Christian object clause [FN1] and provide "thorough knowledge of the Bible
and Christianity as a cultural heritage and Evangelical-Lutheran Faith".
During the preparation of the Act, the Parliament instructed the Ministry to
obtain a professional evaluation of the Act's relationship with human
rights. This evaluation was carried out by the then Appeals Court judge Erik
Møse, who stated that:
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[FN1]Paragraph 2 (4) of the Education Act reads as follows: "Section 2-4.
Teaching the subject CKREE. Exemption from regulations, etc: Teaching in
CKREE shall
-Provide a thorough knowledge of the Bible and Christianity both as cultural
heritage and Evangelical-Lutheran faith,
-Provide knowledge of other Christian denominations,
-Provide knowledge of other world religions and philosophies of life,
ethical and philosophical topics,
-Promote understanding and respect for Christian and humanist values and
-Promote understanding, respect and the ability to carry out a dialogue
between people with different views concerning beliefs and philosophies of
life.
CKREE is an ordinary school subject that shall normally be attended by all
pupils. Teaching in the subject shall not involve preaching.
Teachers of CKREE shall tale as their point of departure the objects clause
of the primary and lower secondary school laid down in section 1-2, and
present Christianity, other religions and philosophies of life on the basis
of their distinctive characteristics. Teaching of the different topics shall
be founded on the same educational principles.
On the basis of written notification from parents, pupils shall be exempted
from attending those parts of the teaching at the individual school that
they, on the basis of their own religion or philosophy of life, perceive as
being the practice of another religion or adherence to another philosophy of
life. This may involve religious activities either in or outside the class
room. In cases where exemption is notified, the school shall, as far as
possible and especially in the lower primary school, seek solutions
involving differentiated teaching within the curriculum.
Pupils who have reached the age of 15 may themselves give written
notification pursuant to the fourth paragraph."
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"As the situation stands, I find that the safest option is a general right
of exemption. This will mean that the international inspectorate bodies will
not involve themselves with the questions of the doubt raised by compulsory
education. However, I cannot state that the partial exemption will be in
contravention of the conventions. The premise is that one establishes an
arrangement that in practice lies within their (the conventions')
frameworks. Much will depend on the further legislative process and the
actual implementation of the subject."
2.4 The Ministry's circular on the subject states that: "When pupils request
exemption, written notification of this shall be sent to the school. The
notification must state the reason for what they experience as the practice
of another religion or affiliation to a different life stance in the
tutoring." A later circular from the Ministry states that demands for
exemption on grounds other than those governed by clearly religious
activities must be assessed on the basis of strict criteria.
2.5 The Norwegian Humanist Association (the NHA), of which the authors are
members, engaged an expert in Minority Psychology in the autumn of 2000 to
investigate and report on how children react to conflicting life
stance-related upbringing and education both in school and at home. He
interviewed among others the authors. His conclusion was amongst others that
both children and parents (and in all likelihood the school) experience
conflicts of loyalty, pressure to conform and acquiesce to the norm, and for
some of the children bullying and a feeling of helplessness. The report was
put before the State party and presented as evidence in Supreme Court
proceedings.
2.6 Due to criticism of the subject and the limited right to exemptions, the
legislators decided that the subject would be evaluated in the course of a
three-year period after its introduction. The Ministry gave this task to the
Norwegian Research Council, which engaged three research institutes carry
out the evaluation. The results were published in two reports in October
2000. One of the reports concluded that, "the partial exemption arrangements
did not function in a way that parents' rights were sufficiently protected".
Subsequently, the Ministry issued a press release stating that "the partial
exemption does not function as intended and should therefore be thoroughly
reviewed".
2.7 The issue was debated in Parliament and a proposal was adopted that from
the start of the school year 2002, the subject's name should be
"Christianity and General Religious and Moral Education". It was emphasized
that all teaching would be based on the school's Christian object clause and
that Christianity covered 55% of the teaching hours, leaving 25% to other
religious/life stances and 20% to ethical and philosophical themes. A
standardised form for applications for exemption from religious activities
was issued to simplify existing exemption arrangements. The idea was that it
would not be necessary to submit the application form more than once per
educational stage, in other words three times during the total period of
schooling. It was emphasized that it was still only religious activities,
not the knowledge thereof, that were subject to exemption. Subsequently, a
Curriculum Group was gathered to assist the Norwegian Board of Education in
implementing the changes. Although the majority of the Curriculum Group
voted against it, the Ministry included in the revised curriculum that a
clause that the teaching of knowledge of religions and life stances that are
not represented in the local community can be postponed from the primary
school until the intermediate stage. The authors contend that this confirms
the prioritising of the majority's identity at the cost of pluralism
2.8 Several organisations representing minorities with different beliefs
voiced strong objections to the CKREE subjects. After school started in the
autumn of 1997, a number of parents, including the authors, demanded full
exemption from relevant instruction. Their applications were rejected by the
schools concerned, and on administrative appeal to the Regional Director of
Education, on the ground that such exemption was not authorized under the
Act.
2.9 On 14 March 1998, the NHA and the parents of eight pupils, including the
authors in the present case, instituted proceedings before the Oslo City
Court. By judgment of 16 April 1999, the Oslo City Court rejected the
authors' claims. On 6 October 2000, upon appeal, the Borgarting Court of
Appeal upheld this decision. The decision was confirmed upon further appeal,
by the Supreme Court in its judgement of 22 August 2001, thus it is claimed
that domestic remedies have been exhausted. Three of the other parents in
the national court suit, and the NHA, decided to bring their complaint to
the European Court of Human Rights (hereinafter denominated ECHR)).
THE FACTS AS SUBMITTED BY MS. AND MR. UNN AND BEN LEIRVÅG, AND THEIR
DAUGHTER GURO
3.1 Unn and Ben Leirvåg have a non-religious humanist life stance. They did
not wish to see their daughter participate in CKREE classes, where textbooks
are in conflict with their life stance. Their daughter, Guro (born on 17
February 1991), started at Bratsbergkleiva School in Porsgrunn in the autumn
of 1997. Her application for full exemption from the CKREE subject was
rejected. Subsequently, Guro attended CKREE classes.
3.2 As time passed with Guro's attendance of CKREE classes, the parents
became aware that most of the material used in the subject was religious
narrative and mythology as the sole basis for understanding the world and
reflection on moral and ethical issues. Unn Leirvåg, a teacher, applied
professional skills on the evaluation of the curriculum, syllabus and
textbooks, and found that the main theme of the subject matter in the 1st to
4th school year was taught through retelling Bible stories and relating them
to the pupils. The CKREE subject thereby ensures that the children are
immersed deeply into the stories contained in the Bible as a framework
around their own perception of reality. The children start with stories from
the Old Testament; the main lesson appearing is that the worst thing a
person can do is to disobey God. Subsequently, the Gospel is introduced,
where the faith in a leader and follow him is put forward as an ideal. This
is again followed by similar narrative from other religions. On this basis,
the pupils are expected to learn how to think about how they should behave.
It is submitted that religious doctrines form an uncritical basis, availing
their daughter of no opportunity or means to distance herself from, make any
reservation against, or criticize the basis. Guro started to use certain
expressions that indicate that the things she learns about Christianity are
synonymous with "good".
3.3 Against her parents' will, Guro found herself in a situation where a
conflict of loyalties arose between school and home. The situation is such
that Guro feels obliged to adapt what she tells her parents about school to
match what she feels is acceptable to her parents.
THE FACTS AS SUBMITTED BY MR. RICHARD JANSEN AND HIS DAUGHTER MARIA
4.1 Richard Jansen a humanist, does not wish his daughter to be taught a
subject that provides for the opportunity of preaching of religion. When his
daughter Maria (born on 3 March 1991) started to attend Lesterud School in
Bærum in the autumn of 1997, an application for full exemption from the
CKREE subject was filed on her behalf, which was rejected. A partial
exemption was granted in accordance with the new law. The authors concluded
that a partial exemption did not work in practice and appealed the decision
to the Director of Education in Oslo and Akershus, who upheld the school's
rejection in rulings of 25 May 1998 and January 2000.
4.2 Subsequently, Maria attended segments of the tutoring under the partial
exemption arrangement. The authors state that Maria on several cases came
home from school and said that she had been teased because her family did
not believe in God. In connection with the end of year term celebrations for
Christmas, Maria was picked out to learn by heart and perform a Christian
text. The school was unable to provide her parents with a local timetable
including an overview of the themes to be treated by Maria's class. Instead,
they were referred to the main curriculum and the weekly timetable. Maria's
parents did exempt her from some lessons during her first year at school. On
these occasions she was placed in the kitchen where she was told to draw,
sometimes alone, and sometimes under supervision. When her parents became
aware that banishment to the kitchen was used as a punishment for pupils who
behaved badly in class, they stopped exempting her from lessons.
THE FACTS AS SUBMITTED BY MS. AND MR. BIRGIT AND JENS ORNING, AND THEIR
DAUGHTER PIA SUZANNE
5.1 Birgit and Jens Orning are humanists and members of the NHA. They do not
wish their children to participate in religious instruction that contains
preaching. The CKREE subject influences the children in a
Christian/religious direction. The authors believe that the child's life
stance should develop freely and naturally, an objective difficult to
achieve in the framework of the CKREE subject.
5.2 Their daughter, Pia Suzanne (born on 23 May 1990), started school in the
autumn of 1997. The parents applied for full exemption from the CKREE
subject. Their application was rejected. Subsequently, Pia Suzanne was
enrolled under the partial exemption from the CKREE subject, an arrangement
that did not work according to her parents' wishes. For example, even though
Pia Suzanne was not to participate in religious tutoring that practiced
preaching, she was enrolled in such tutoring.
5.3 The authors submit that their daughter was on at least two occasions
instructed to learn and recite psalms and Bible texts in connection with the
end of term Christmas celebrations. The children were also required to learn
a number of psalms and Bible texts by heart, a fact that is confirmed by
their workbooks. As a result of the religious instruction, Pia often
experienced conflicts of loyalty between her home and her school. Her
parents decided to move to another part of the country where they could
enrol Pia in a private school.
THE FACTS AS SUBMITTED BY MS. IRENE GALÅEN AND MR. EDVIN PAULSEN, AND THEIR
SON KEVIN JOHNNY GALÅEN
6.1 Kevin Galåen 's (born on 18 February 1987) parents are humanists and
want the tuition of their son to have a non-dogmatic, agnostic basis. They
consider the CKREE subject to be so designed that it would gradually absorb
their son into the Christian faith. Therefore, they applied for full
exemption for Kevin from CKREE subject in the autumn 1997; the application
was rejected. Subsequently, Kevin attended CKREE classes. The parents did
not apply for partial exemption as they did not consider it to be of any use
in their case.
6.2 Kevin did not start school with a fully developed life stance. It is
important to Kevin's parents that he can experience his parent's life stance
as a natural standpoint on his journey to adulthood and in his meeting with
other life stances and philosophies. Kevin's parents consider that the CKREE
subject does not comply with this requirement since they use Christianity as
a basis for the treatment of existential questions and religious pedagogic
methods. The life stance they believe in is only represented by small
fragments and totally without a whole and consistence. They state that the
CKREE subject is over-concentrating on a single religion.
THE COMPLAINT
7.1 The authors claim that the State party violated their rights to freedom
of religion � i.e. their right to decide on the type of life stance
upbringing and education their children shall have - and their right to
privacy. It is also claimed that the partial exemption procedure violates
the prohibition of discrimination.
7.2 It is argued that the right to freedom of thought, conscience and
religion, as enshrined in article 18 of the Covenant, also applies to
non-religious life stances, and that parents have, pursuant to paragraph 4
of that article, a right to ensure that their children receive education in
accordance with their own philosophical convictions, in particular in
relation to mandatory, state-provided education. The authors refer to the
Committee's Views in the case of Hartikainen et al. v. Finland
(Communication No. 40/1978) and to General Comment No. 22 on article 18, in
particular its paragraphs 3 and 6. Reference is also made to the Committee's
Concluding Observations on the fourth periodic report by Norway, where the
Committee reiterated its concerns over section 2 of the Constitution which
provides that individuals professing the Evangelical-Lutheran religion are
bound to bring up their children in the same faith and held that this
provision of the Constitution is "incompatible with the Covenant" (CCPR/C/79/Add.112,
paragraph 13).
7.3 The Committee on the Rights of the Child in its Concluding observations
on the report by Norway, adopted on 2 June 2000, also expressed concerns
about the CKREE, in particular on the process of providing for exemption
which it considered to be potentially discriminatory (CRC/C/15/Add.126,
paragraphs 26-27).
7.4 While the State party has argued that it is necessary for children to
understand and learn about various life stances in order to develop their
own life stance identity and a greater level of respect for other religions
and life stances, the authors consider that a mandatory religious subject is
not a suitable vehicle for obtaining the desired result. They find that the
introduction of the CKREE has lowered the respect for their own life
stances.
7.5 Furthermore, it is submitted that the obligatory attendance of CKREE
teaching is not necessary in a democratic society. This is demonstrated
through the absence of such compulsory teaching in Norway prior to the
introduction of the CKREE, as well as in other European states.
7.6 The authors claim that a more suitable vehicle to achieve the desired
result would be to strengthen the pre-CKREE life stance subject, and make it
mandatory for pupils that are exempted from religious studies. The CKREE
subject is based on Christian premises and fulfils only the part of the
intention that applies to the strengthening of the identity of children from
Christian homes. Therefore, the compulsory CKREE subject represents a
violation of the authors' rights to display an independent life stance.
7.7 In relation to the children, it is submitted their right to choose and
hold a religion or life stance of their own is violated, in that the
compulsory CKREE subject forces them to participate in a learning process
that includes indoctrination into the direction of a religious/Christian
life stance. The authors have no wish to be incorporated in such a
religious/Christian conception of reality.
7.8 The partial exemption arrangement implies that there shall be
communication between the parents and the school about what they consider
problematic. This implies that the parents' life stance forms the basis for
the evaluation of the exemption, in particular during the early school
years. Instead of a free and independent development of the child's life
stance, the child is forced to take a junior role in relation to its
parents. This conflicts with the humanist view of the child's development
shared by the authors' families. The authorities' evaluation of whether
there are grounds for an application for exemption imposes on the children a
conflict of loyalties between the school and the parents.
7.9 The partial exemption arrangement also requires that the authors
describe to the school officers, the segments of the CKREE education that
conflict with their own convictions, thus violating their right to privacy
under article 17 of the Covenant. In relation to the children, it is
submitted that they are subjected to a violation of their right to privacy
to the extent that they are drawn into the exemption process.
7.10 The authors contend that the facts as submitted also constitute a
violation of their rights under article 27 of the Covenant.
7.11 The authors submit that the exemption arrangement in place put heavier
requirements on non-Christian parents than on Christian parents, making
imposition of this procedure discriminatory, in violation of article 26 of
the Covenant. The exemption arrangement requires that the authors have a
clear insight into other life stances and educational methodology and
practice, an ability to formulate their opinions, and the time and
opportunity follow up the exemption arrangement in practice, whereas no such
requirements apply to Christian parents. The exemption arrangement
stigmatises in that it obliges the authors to state which segments of the
CKREE subject are problematic in relation to their own life stance, which in
turn will appear as a "deviation" from the commonly held life stance. The
imposition on the authors to reveal their own life stance to school officers
is claimed to be in violation of article 26 in conjunction with article 18,
paragraphs 1-4.
7.12 In relation to the children, it is submitted that the partial exemption
means that they shall not participate in the activity stipulated in the
syllabus, but would gradually obtain the same knowledge of the theme in
question as other pupils. The approach of those exempted to the material
will therefore be qualitatively inferior to the other pupils. This entails a
sense of being different which can be experienced as problematic and creates
a sense of insecurity and conflicts of loyalty.
The State party's submission on admissibility
8.1 On 3 July 2003, the State party commented on the admissibility of the
complaint. It challenges the admissibility on the basis that the same matter
is already being examined under another procedure of international
investigation or settlement, for non-exhaustion of domestic remedies and for
non-substantiation of their claims.
8.2 The State party notes that before the Norwegian courts, the authors'
claims of exemption from the school subject named "Christian Knowledge and
Religious and Ethical Education" were adjudicated in a single case, along
with identical claims from three other sets of parents. The different
parties were all represented by the same lawyer (the identical to counsel in
this case), and their identical claims were adjudicated as one. No attempts
were made to individualize the cases of the different parties. The domestic
courts passed a single judgment concerning all the parties, and none of the
courts differentiated between the parties. Despite having pleaded their case
jointly before the domestic courts, the parties opted to send complaints
both to the European Court of Human Rights (ECHR) and to the Human Rights
Committee. Four sets of parents lodged their communications with the Human
Rights Committee, and three others with the ECHR on 20 February 2002. The
communications to the Human Rights Committee and to the ECHR are to a large
extent identical. Thus it appears that the authors stand together, but that
they are seeking a review by both international bodies of what is
essentially one case.
8.3 While the State party acknowledges the Committee's findings on
communication 777/1997, [FN2] it submits that the present case should be
held inadmissible because the same matter is being examined by the ECHR. It
contends that the present case differs from the case of Sanchez Lopez in
that the authors in that case argued that "although the complaint submitted
to the European Commission of Human Rights relates to the same matter, in
that the complaint, the offence, the victim and, of course, the Spanish
judicial decisions, including the relevant application for amparo, were not
the same". In the present case the same judgment by the Norwegian Supreme
Court is being challenged before both bodies. The Norwegian Supreme Court
judgment concerned an issue of principle, whether or not the CKREE subject
violated international human rights standards.
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[FN2] Sanchez López v. Spain (777/1997), Decision adopted on 22 October
1996.
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8.4 If the communication is deemed admissible, the international bodies will
need to take a general approach, i.e. they have to ask whether or not the
subject as such, in the absence of the right to a full exemption, is in
violation of the right to freedom of religion. As the primary objective of
article 5, paragraph 2 (a), of the Optional Protocol is to prevent a
duplication of examination by international bodies of the same case, such
duplication is exactly what the different parties to the case adjudicated by
Norwegian courts are operating.
8.5 On the issue of exhaustion of domestic remedies, the State party submits
that the claims under articles 17 and 18 were not raised in the domestic
proceedings, and thus domestic remedies have not been exhausted. It refers
to Section 2-4, paragraph 4 of the Education Act which allows for partial
exemption from teaching in the CKREE subject, namely from those parts of the
teaching that they, on the basis of their own religion or philosophy of
life, perceive as being the practice of another religion or adherence to
another philosophy of life. Schools must allow for exemption from the parts
of the tuition that reasonably may be perceived as being the practice of
another religion or adherence to another life philosophy. A decision by a
school not to allow for exemption is subject to administrative appeal to the
County Governor, whose decision again may in turn be brought before the
courts for a judicial review.
8.6 The authors did not avail themselves of the possibility of applying for
partial exemption; their cases concern applications for full exemption from
the CKREE subject. Any basis for finding a violation of articles 17 and 18
would have to be found in the tuition offered to the authors' children. Such
violation, however, could have been avoided by applications for partial
exemption. To comply with the requirement of exhaustion of domestic
remedies, the authors would first have to exercise their right under Section
2-4, paragraph 4. If the school and the County Governor did not grant
partial exemptions, the authors would have to apply for judicial review.
8.7 The State party argues that the authors' claims under articles 26 and 27
are insufficiently substantiated. As to article 26, the State party points
out that the exemption clause of the Education Act applies to all parents,
regardless of religion or life stance. Also, the syllabus for the CKREE
subject provides for tuition in tenets of Christianity and other religions
and life stances, shall not involve preaching, and shall be founded on the
same educational principles. [FN3] Any differentiation between Christians
and other groups is based on objective and reasonable criteria. The school
subject at issue has important cultural and educational objectives. Limiting
the possibilities for exemption to those parts of the tuition that
reasonably may be perceived as being the practice of another religion or
adherence to another philosophy of life, cannot be considered discrimination
contrary to article 26.
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[FN3] Education Act Section 2-4, paragraphs 1-3.
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8.8 On article 27, the State party notes that the authors have simply
invoked this provision without making any attempt at explaining how a group
defines itself as non-Christians, can constitute a religious minority within
the meaning of article 27.
8.9 On 9 July 2003, the Committee's Special Rapporteur on New Communications
and interim measures declined to separate the admissibility and the merits
of the complaint.
THE STATE PARTY'S SUBMISSION ON THE MERITS
9.1 On 21 November 2003, the State party commented on the merits of the
complaint. The principal issue of the case before the domestic courts was
whether or not the CKREE subject in general, in the absence of a full
exemption clause, was in violation of the human rights treaties ratified by
Norway, including the ICCPR. Accordingly, all claims made in the present
communication have already been assessed by the domestic courts, including
the Supreme Court of Norway. The Supreme Court concluded that the CKREE
subject with its partial exemption clause is in full compliance with
international human rights.
9.2 When Norwegian authorities proposed a new national curriculum for
mandatory education to the Parliament in 1995, the Parliament's Standing
Committee on Education, Research and Church Affairs ("the Education
Committee") proposed that the curriculum should include a common subject
encompassing Christianity and other religious and ethical beliefs. As some
elements of the subject gave rise to concerns in relation to the rights of
parents to secure their childrens' education in conformity with their own
convictions, the Standing Committee requested the Government to prepare
guidelines for exemption.
9.3 Proposals for amendments and guidelines for partial exemption to the
CKREE subject were then drafted. The Government charged Erik Møse, then a
Judge of the Court of Appeal, with the task of examining to what extent
Norway's obligations might impose limitations with regard to compulsory
instruction on issues of religion or philosophies of life, and to what
extent exemption from instruction in the CKREE subject would have to be
allowed for. Mr. Møse's report concluded, inter alia, that a limited
exemption would in principle be compatible with Norway's international legal
obligations, provided that a system for practicing the exemption could be
devised within the limits imposed by the conventions. Final conclusions
would depend on the further process of establishing the legal framework for
the CKREE subject, and the way the subject was taught in schools.
9.4 In response, the Ministry of Education proposed further amendments to
the 1996 Education Act. The Act came into force on 1 July 1997. The right to
exemption was limited to those parts of the instruction that are perceived
by parents as being the practice of another religion or adherence to another
philosophy of life.
9.5 The State party considers the rights of parents under article 18,
paragraph 4, to be the core issue of the case. Their claim is based on their
allegation that the CKREE subject amounts to "both preaching and
indoctrinating" and that it is "neither objective, pluralistic or neutral",
combined with the fact that the 1998 Education Act does not allow for full
exemption. The State party submits that the CKREE subject is in conformity
with the Covenant. However, the applicable law, regulations or instructions
may be incorrectly applied in individual cases. Some teachers may include
themes or choose words for their instruction that may be found
indoctrinating or that particular schools or municipalities may practice the
exemption clause in a manner that is inconsistent with the Act and the
secondary legislation.
9.6 Parents who perceive the teaching as indoctrinating and do not obtain an
exemption have several avenues of redress. Firstly, a decision not to allow
for exemption may be subjected to administrative and/or judicial review.
Secondly, claims of alleged human rights violations may be brought before
the courts. The authors in the present case did not specify when or how
their children were exposed to indoctrinating instruction for which they in
vain have sought exemption as provided by the Act. As far as the State party
is aware, none of the authors have had requests for partial exemption
rejected, and certainly, no rejections have been brought before the domestic
courts for judicial review.
9.7 The procedural choices of the authors must have consequences for the
admissibility and merits of their case. The claim under article 18 should be
held inadmissible because the authors have not exhausted the available and
effective remedy of requesting partial exemption. Secondly, until such
exemption has been sought, it cannot be established whether or not their
children were compelled to participate in tuition, in violation of Covenant
rights, and the authors thus cannot be considered victims of a violation of
article 18. Thirdly, in the event that the communication is deemed
admissible, the failure of the parents to challenge the tuition accorded to
their children, must influence consideration of the merits. The Committee
should limit its examination to the general issue of whether or not, in the
absence of a clause providing for full exemption, the CKREE subject as such
violates the rights of parents. There is no basis for examining the
individual teaching experiences of the authors' children.
9.8 As to the authors' references to the textbooks, the State party points
out that the textbooks are not defined as part of the subject's legal
framework. The Act and secondary regulations confer discretion on the
schools with regard to which and to what extent textbooks are to be used as
part of the instruction. Nevertheless, should the Committee examine the
particular instruction offered to the authors' children, the authors have
made scant attempts to substantiate their claim that instruction is
indoctrinating, which cannot be sufficient to sustain a finding of a
violation. It should also be noted that the State party reported on the new
CKREE subject in its fourth periodic report to the Committee, and that the
Committee, in its, concluding observations, did not express concern
regarding the subject's compatibility with the Covenant.
9.9 The State party submits that from General Comment No. 22 on article 18,
and the Committee's decision in Hartikainen et al. v. Finland, [FN4] can be
inferred that article 18, paragraph 4, does not prohibit compulsory school
instruction on issues of religion and philosophies of life, provided that
the instruction is given in a neutral and objective way.
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[FN4] Communication No 40/1978, Views adopted on 9 April 1981.
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9.10 The State party contends that religious instruction imparted in a
neutral and objective way complies with other human rights standards, such
as the CESCR, and the CRC. Accordingly, article 18, paragraph 1 cannot bar
compulsory education which is intended to "enable all persons to participate
effectively in a free society,and promote understanding, tolerance and
friendship among all nations and all racial, ethnic or religious groups"
(CESCR article 13, paragraph 1) or to develop respect for "his or her own
cultural identity, language and values, for the national values of the
country in which the child is living, the country from which he or she may
originate, and for civilizations different from his or her own" (CRC art 29,
paragraph 1(c)). The CKREE is designed to promote understanding, tolerance
and respect among pupils of different backgrounds, and to develop respect
and understanding for one's own identity, the national history and values of
Norway, as well as for other religions and philosophies of life.
9.11 The State party invokes the practice under article 2 of the Protocol
No.1 to the European Convention on Human Rights, which includes the State
party's obligation to respect the right of parents to ensure such education
and teaching in conformity with their own religious and philosophical
convictions. Reference is made to relevant jurisprudence of the ECHR.
9.12 The State party argues that the Committee's approach in the present
case should be two-fold. Firstly, the Committee should examine whether or
not the CKREE subject in general involves the imparting of information and
knowledge in a manner that is not objective and neutral. Secondly, with
regard to elements of the subject that do not meet those standards, it
should examine whether or not sufficient provision has been made for
non-discriminatory exemptions or alternatives that would accommodate the
wishes of the parents.
9.13 With regard to the first issue, it is submitted that the CKREE subject
involves only a few activities that may be perceived as being of a religious
nature. Until 1997, knowledge of Christianity was taught as an independent
subject in Norwegian schools. In 1997, the government introduced the CKREE
subject in order to combat prejudices and discrimination, and to cater for
mutual respect and tolerance between different groups religions and life
stances as well as a better understanding of one's background and identity.
Another explicit aim was to contribute to the enhancement of a collective
cultural identity. The achievement of these goals requires that members of
different groups jointly participate in the instruction. Consequently, the
CKREE subject could not function in accordance with its purpose if full
exemption from the subject was readily available to everyone.
9.14 Children are not required to attend public schools. It is possible for,
i.e. the NHA or the authors, to establish private schools. This is a
realistic and viable alternative also as regards economic risk, as the
government carries more than 85 % of all expenditures related to the
operation and functioning of private schools.
9.15 With regard to the authors' allegation that instruction in Christianity
involves more time than instruction of other religions and philosophies of
life, it is submitted that instruction in Christianity in itself cannot
cause concerns under the Covenant, as long as the instruction is carried out
in an objective and neutral manner. Reference is also made to a pertinent
decision of the European Commission of Human Rights.
9.16 In response to the authors' challenge of the so-called "Christian
object clause" [FN5] in section 1-2, paragraph 1, of the Education Act, the
State party submits that, according to the Christian object clause itself,
it shall only apply "in agreement and cooperation with the home". Also,
under section 3 of the Norwegian Human Rights Act, section 1-2 of the
Education Act must be interpreted and applied in accordance with
international human rights treaties that have been incorporated into
domestic law (ICCPR, CESCR and ECHR). Consequently, the Christian object
clause does not authorize preaching or indoctrination in Norwegian schools.
This was the conclusion of the Supreme Court in the authors' case.
-------------------------------------------------------------------------------------------------------------------------------
[FN5] See footnote no. 1 above.
-------------------------------------------------------------------------------------------------------------------------------
9.17 On the second issue, it is submitted that sufficient measures were
taken to provide exemptions and/or alternatives to accommodate all parents
with regard to activities that may be perceived as being of a religious
nature. This solution was designed to meet the competing interests of
recognizing the parents' right to secure their children's education in
conformity with their own religious and philosophical convictions, while
also acknowledging that society had a legitimate interest in enhancing
mutual respect, understanding and tolerance between pupils of different
backgrounds.
9.18 The most important mechanism is the provision [FN6] which allows from
exemption from parts of the courses that were perceived as being the
practice of another religion or philosophy of life, on the basis of written
notification from concerned parents. The travaux préparatoires lay down
further guidelines for allowing such exemption. Activities that allow for
exemption are grouped in two different categories. Firstly, exemption shall
be granted when requested for activities that clearly may be perceived to be
of a religious nature. For such activities, parents are under no obligation
to give reasons for their requests. In 2001, the Ministry simplified the
exemption procedure by developing a notification form that may be used to
claim exemption from eight different, specific activities, e.g. learning by
heart of prayers, declarations of faith and religious texts, singing of
religious hymns, attendance of religious service, excursions to churches,
production of religious illustrations, active of passive roles in religious
dramatizations, and receiving holy scripts as gifts and taking part in
events in this context. Parents may claim exemptions from these activities
by simply ticking off boxes for the relevant religion(s). Secondly,
exemption may be granted from other activities, provided that they may
reasonably be perceived as being the practice of another religion or
adherence to another philosophy of life. For these cases, parents must
present brief reasons for their request to enable the schools to consider
whether the activity may reasonably be perceived as the practice of another
religion or adherence to another life philosophy.
-------------------------------------------------------------------------------------------------------------------------------
[FN6] Education Act, Section 2-4, paragraph 4.
-------------------------------------------------------------------------------------------------------------------------------
9.19 The second mechanism intended to remedy problems encountered on the
basis of parents' religious or philosophical convictions involves
flexibility in teaching, to the extent possible, and in accordance with the
pupils' background.
9.20 On the alleged violation of article 26, the State party submits that to
impose general obligations or rules, while at the same time allowing for
exemptions provided that specific criteria are fulfilled, is an effective
and admissible way of governing, and does not contravene article 26. Such
methods of governing will, invariably, require that the citizens themselves
consider whether they fulfil the requirements for exemption, and that they
must duly apply for exemption, in the manner and within the time limits
posed, and the State party does not consider such legal regimes to be
discriminatory. The exemption clause does not distinguish between Christians
and non-Christians.
9.21 In any event, the obligations imposed by the exemption clause cannot be
considered disproportionate or unreasonable. Requests for exemption need not
be justified by the parents in cases where the activities clearly may be
perceived to be of a religious nature. General Comment No. 22, paragraph 6,
of the Committee appears to accept systems in which the general rule is that
children must participate in school courses, with the possibility for
exemption from instruction in a particular religion. Other subjects, such as
history, music, physical education and social studies, may also give rise to
religious or ethical issues, and the exemption clause therefore applies to
all subjects. The State party considers that the only viable system both for
those subjects and for the CKREE subject is to allow for partial exemptions.
If that was deemed discrimination, article 26 would make most compulsory
education impossible to carry out.
9.22 As to the alleged violation of article 17 on the ground that parents
applying for partial exemption "must reveal elements of their life stance
and beliefs to school officers and staff", the State party submits that
parents only have to give reasons for activities that do not obviously
appear to be the practice of a specific religion or adherence to a different
philosophy of life. Where reasons have to be given, parents are not required
to provide information on their own religion or philosophical convictions.
School employees are under a strict duty of secrecy with regard to the
knowledge they obtain about personal affairs of individuals. [FN7] If the
Committee were to find that the requirement for reasons in certain cases
constitutes an interference with the privacy of the authors, the State party
argues that the interference neither is unlawful or arbitrary.
-------------------------------------------------------------------------------------------------------------------------------
[FN7] Public Administration Act (1967), Section 13.
-------------------------------------------------------------------------------------------------------------------------------
9.23 On the "lawfulness" of the interference, the State party notes that the
obligation for parents to give reasons in certain cases is spelled out in
section 2-4 of the Education Act. As to the notion of arbitrariness, the
State party refers to the Committee's General Comment No.16, paragraph 4,
and to the positive interests that the CKREE subject pursues, and submits
that the partial exemption clause must be considered both reasonable and
proportionate. Reference is made to the parallel of conscientious objection
to compulsory military service, where conscientious objectors must give far
more elaborate and more personal reasons for their requests than parents
requesting exemptions from the CKREE subject, yet these systems have been
accepted by international human rights bodies.
THE AUTHORS' COMMENTS ON ADMISSIBILITY AND MERITS
10.1 On 6 and 27 April 2004, the authors commented on the State party
submissions and withdraw their claim under article 27. They submit that the
issue of whether or not the CKREE subject constitutes a violation of
Covenant rights, must be seen in the broader context of a society with
Christian predominance, as Norway has a state religion, a state church,
constitutional prerogatives for the Christian faith, a Christian intention
clause for public schools and pre-schools, state church priests in the armed
forces, prisons, universities and hospitals, etc. Still, the right to
freedom of religion for non-Christians has been taken care of in different
ways, i.a., by an exemption arrangement from the Christian knowledge subject
in public schools. The right to general exemption, practiced for more than
150 years, was eliminated when the CKREE subject was introduced in 1997.
10.2 On admissibility, the authors submit that the children were not formal
plaintiffs before domestic courts because Norwegian civil procedure is based
on the recognition of parents as legal representatives of their minor
children. Had the children been formal plaintiffs, they would still have
been represented by their parents and the factual context would have been
the same as in this case. The children thus have no further domestic remedy.
10.3 While other sets of parents have lodged similar complaints with the
ECHR, this cannot be considered as "the same matter" as the present case
being examined "under another procedure of international �settlement",
within the meaning of article 5, paragraph 2 (a), of the Optional Protocol.
Reference is made to relevant jurisprudence of the Committee, [FN8] which
holds that if different individuals send their complaints to different
international bodies, the complaints are not considered as the "same
matter". The Norwegian civil procedure allows different parties to join in a
common law suit. Before domestic courts, each author's case was presented
separately. The claims concerned separate administrative decisions on the
respective party's application for full exemption from the CKREE tuition.
The fact that the NHA was recognized as a formal party before the lower
courts, but denied such status before the Supreme Court, indicates that the
Supreme Court considered the parents' separate claims.
-------------------------------------------------------------------------------------------------------------------------------
[FN8] Fanali v. Italy (75/1980), Views adopted on 31 March 1983, and Blom v.
Sweden (191/1985), Views adopted on 4 April 1988.
-------------------------------------------------------------------------------------------------------------------------------
10.4 The parents who were parties to the domestic court proceedings are all
individuals, and have a right to decide which international body to complain
to. That they share the same life stance and membership in a life stance
organisation does not change this situation. The communications before the
Human Rights Committee and the ECHR are therefore not the "same matter".
10.5 On the State party's claim that they did not exhaust domestic remedies
because they did not apply for partial exemption, the authors submit that
two of them actually applied for partial exemption but that they reverted to
an application for full exemption when they realized that the partial
exemption arrangement did not protect their children from religious
influence, and was perceived by them and the children to be stigmatising.
The partial exemption arrangement provides for exemptions from certain
activities but not from certain knowledge. Consequently, the pupils may be
exempted from praying but not from knowing the prayer. Accordingly, the
authors claim that their right to full exemption is protected by the
Covenant, and the State party's argument that they should have applied for
partial exemption is dismissed as irrelevant.
10.6 On the State party's contention that their claim under article 26 is
unsubstantiated, the authors reaffirm that non-Christians are discriminated
against in that they have to give reasons for why they seek exemption from
CKREE, whereas Christians are subjected to no such requirements since the
CKREE subject is first and foremost designed for them. The Committee already
characterized the Norwegian school system on education in religion as
discriminatory (before the introduction of the CKREE subject in 1997). The
new exemption arrangements are more discriminatory than the former system,
since the former system only required that those applying for exemption
stated whether or not they were members of the state church. After
proceedings in the Supreme court, the State party introduced a standard form
of notification of partial exemption from CKREE. This fact, however, is not
relevant to the present case, and does not change the authors' view on the
partial exemption procedure.
10.7 In response to the State party's argument that all claims in the
present case have been carefully examined, the authors note that the Supreme
Court chose not to examine the parents' substantial claims and approached
the legal questions in a very general way.
10.8 The authors challenge the State party's legalistic approach to the
question of a Covenant violation, since the practice of the law, that is the
actual tuition and practice of the exemption, is the key to the question of
whether or not there has been a Covenant violation. The government appointed
two research institutions to examine how the CKREE subject and in particular
the partial exemption procedure worked in practice. One of them (Diaforsk)
concluded that the exemption arrangement did not function in a way that
sufficiently protected the rights of parents in practice. The press release
from the Ministry of Church, Education and Research stated that both
investigations concluded that the partial exemption arrangement did not
operate as planned and should therefore be reviewed. Both research
institutions recommended the introduction of a general right to exemption.
10.9 The authors consider that the CKREE subject itself constitutes a breach
of their right to decide on their children's life stance education, and that
a possible partial exemption in their cases would have encompassed such a
great part of the subject that it would have exceeded the 50% limit
indicated in the travaux préparatoires. Partial exemption arrangements do
not secure these parental rights, as those parts of tuition that may be
exempted from, still are imparted to the student.
10.10 As admitted by the government, the textbooks contain segments that may
be conceived as professing Christianity. Although the textbooks are not
defined as part of the subject's legal framework, they have been controlled
and authorized by an official state agency, they have official status, and
are used by 62% of Norwegian schools
10.11 The State party admits that at least parts of the CKREE tuition can be
perceived as being of religious nature, but it does not comment on whether
this fact implies that these parts of the education are inconsistent with
the "neutral and objective" standard. The authors consider that a
distinction between the parts that are of religious nature and those that
are not cannot be made and that it has not even been attempted. Reference is
made to the research results of the Diaforsk Institute, where it is stated
that: "We asked the teachers how they practiced this distinction in the
tuition situation. Very few teachers understood what we meant by the
question." One of the CKREE goals, i.e. that of having all pupils to join in
the tuition situation, is clearly contrary to the State party's argument
that one has the freedom to choose private schooling for children from
humanist homes. If humanists were to establish their own school, their
children would not be gathered in the same tuition situation as other
children.
10.12 The CKREE subject's emphasize on Christianity can be further
illustrated by the travaux préparatoires, where the Education Committee
stated: "The majority underline[s] that the tuition is not neutral in value.
That the instruction shall not be of a preaching character, must never be
interpreted in the way that it should be practised in a religious/moral
vacuum. All instruction and upbringing in our primary school shall have the
starting point in the intention clause for the school, in this subject
Christianity and the different religions and life stances should be present
according to their particular character. The main emphasis of the subject is
the instruction on Christianity."
10.13 It is argued that the CKREE's discrimination of non-Christians is
disproportionate and unreasonable since it was not necessary for the State
party to abolish the previous arrangement, and that the purpose of bringing
pupils together "in order to combat prejudices and discrimination", and
other laudable intentions, could have been achieved by other arrangements
than forcing everyone to take part in a subject predominantly designed for
Christian upbringing.
ADDITIONAL INFORMATION BY THE STATE PARTY
11.1 On 4 October 2004, the State party submitted additional observations on
the admissibility and merits of the communication. [FN9] As to the
admissibility of the communication, the State party reiterates its
observations submitted earlier (27 April 2004). On the merits, the State
party reiterates that the Supreme Court had carefully assessed the case and
concluded that the CKREE subject and its partial exemption clause was in
full compliance with international human rights; Article 18 of the Covenant
does not prohibit mandatory school instruction on issues of religion and
philosophies of life, provided it is carried out in a pluralistic, neutral
and objective way; Both the ICESCR (International Covenant on Economic,
Social and Cultural Rights) and the Convention on the Rights of the Child
impose positive obligations on the States parties to provide education with
certain social and ethical dimensions; and the parents failed to challenge
the specific tuition accorded to their children.
-------------------------------------------------------------------------------------------------------------------------------
[FN9] The State party provides the English translation of Circular F-03-98
(12 January 1998) and excerpts of Recommendation no. 15 for 1995-96 from the
Education Committee from the Storting (the Norwegian Parliament).
-------------------------------------------------------------------------------------------------------------------------------
11.2 More specifically, the State party refers to the authors' main
objection that by virtue of teaching of the CRKEE subject, their children
may receive information that amounts to indoctrination. In order to avoid a
violation of article 18, paragraph 4, they requested a full exemption of the
CKREE. The State party considers unnecessary a full exemption as the subject
is multidisciplinary, with components of social science, world religions,
philosophy and ethics, in addition to Christian knowledge.
11.3 In respect to the authors' submissions, the State party contends that
the CKREE was thoroughly evaluated and two independent reports were
commissioned and considered in the 2000-2001 Report of the Ministry of
Education to the Storing. The Supreme Court examined the reports and their
administrative follow�up what constitutes, of the State party's opinion, the
proof that the Court was fully aware of all aspects of the case when
concluding that the CKREE subject was in conformity with international human
rights covenants. The concluding remarks of the evaluation reports indicated
that in the majority of the cases, partial exemptions operated
satisfactorily, most parents found that the CKREE worked well for their
children and that few teachers perceived partial exemption as source of
practical problems.
11.4 With regard to the authors' allegation that the State party ignored
warnings from different religious groups, human rights law body and the
judge Mose's recommendation, it is stated that there was no unified position
against the introduction of the CKREE subject in school, that religious
minority groups participated in drawing up the new teaching plan approved by
Parliament, and that at present there was a little, if any, disagreement on
the exemption clause of the CKREE.
11.5 The State party further refers to the authors' commentary on the
limited relevance of the ECHR case of Kjeldsen, Busk Madsen and Pedersen v.
Denmark [FN10] to the present case, because it related to mandatory sex
education and not religious education.
-------------------------------------------------------------------------------------------------------------------------------
[FN10] European Court for Human Rights, applications nos 5095/71, 5920/72
and 5926/72.
-------------------------------------------------------------------------------------------------------------------------------
11.6 The State party points out, with respect to the authors' allegations
that in its observations the Committee of the Rights of the Child expressed
concern of "the process of providing for exemptions", without giving the
reasons for its concern. Since the adoption of the above observations (2
June 2000), the CKREE subject and its exemption process have been thoroughly
evaluated and the authorities acted on concerns raised by granting
exemptions upon standardized notification and by facilitating the
communications between schools and homes. Finally, the State party notes
that the Committee did not object to a partial exemption scheme, nor
supported the authors' claims for a full exemption.
11.7 The State party affirms that many subjects taught at school may include
information or actions perceived to have philosophical or religious aspects.
It notes that in the present case, the authors of the communication were not
concerned by subjects such as science, music, physical education and home
economics, but that there were religious minorities that refused to take
partially part to these subjects, i.e. to the practical aspects of physical
education and music. The State party affirms that a partial exemption clause
is, in general and in respect to CKREE in particular, the only viable way of
carrying out mandatory education.
11.8 As to the issue of discrimination, the State party notes that the
authors' appear to have misapprehended its observations, by taking out the
words "do not" from the following sentence: "In particular, States parties
must be at liberty to demand that parents provide grounds when applying for
exemption from activities that do not immediately appear to be practice of a
specific religion or adherence to a different philosophy of life". The State
party reiterates that following the 2000-2001 evaluation of the CKREE
subject, a general notification form replaced the former application
procedure.
11.9 Finally, with reference to the latest international developments, the
State party affirms that intercultural and inter-religious dialogue should
be encouraged as an integrated part to the children education. According to
it, in this context, the CKREE subject appears to be a vital tool in
promoting "a common playing field for an increasingly multicultural and
diverse generation".
ADDITIONAL INFORMATION BY THE AUTHORS
12.1 By letter of 15 October 2004, the authors filed additional observations
on State party's latest submission. They re-emphasize that they oppose CKREE
because it is not a subject that involves neutral information on different
life stances and religions. CKREE involves direct and undisputed religious
activities (such as prayers). According to the authors', the CKREE syllabus,
combined with the Christian intention clause belies the ratio legis invoked
by the State party. The authors do not oppose education with certain "social
and ethical" dimensions, but the CKREE methodology was to strengthen the
students' religious identity and to teach religious activity within the
framework of the Christian intention clause.
12.2 The authors affirm that even if partial exemption arrangements were
satisfactory in the majority of cases and only few teachers faced practical
problems, this is irrelevant to the present case. The crucial point in the
present case is that minority students and their parents experienced the
system quite differently.
12.3 The authors contest the State party's objection on the absence of
broader opposition to the introduction of the CKREE and argue that
practically all religious and life stance minority groups in Norway opposed
the subject. They add that the Islamic Council and Muslim parents of Norway
filed a law suit against the Government, more or less corresponding to their
own case, and that they lost their case on grounds similar to the authors'
case. It is stated that the Council had decided to await the outcome of the
authors' communication before taking any further legal action.
12.4 It is pointed out that large groups of Norwegian society continue to
have problems with the partial exemption arrangement. The authors submit a
copy of a report prepared in June 2004 by the Norwegian Forum for the
Convention of the Rights of the Child, where it invited the CRC to recommend
the State party to review its "religious and ethical education both in the
state school system and with regard to the requirements for and inspection
of private schools, in relation to the CRC's stipulations on freedom of
thought, conscience and religion".
12.5 Finally, the authors support the continued promotion of the
intercultural dialogue, but affirm that the CKREE does not fulfil this aim.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
13.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol.
13.2 The Committee has noted the State party's challenge to the
admissibility of the communication on the grounds that the authors would not
be "victims" of an alleged human rights violation in the meaning of article
1 of the Optional Protocol. In the Committee's opinion, the authors have
shown that they are affected, individually and as families, of the State
party's law and practice. Consequently, the Committee finds no reason to
declare the communication inadmissible on this ground.
13.3 The State party has contested the admissibility also on the ground that
the "same matter" is already being examined by the ECHR as three other sets
of parents have lodged a similar complaint with the ECHR and that before the
Norwegian courts, the authors' claims for full exemption from the CKREE
subject were adjudicated in a single case, along with identical claims from
these three other sets of parents. The Committee reiterates its
jurisprudence that the words "the same matter" within the meaning of article
5, paragraph 2 (a), of the Optional Protocol, must be understood as
referring to one and the same claim concerning the same individual, as
submitted by that individual, or by some other person empowered to act on
his behalf, to the other international body. [FN11] That the authors' claims
were joined with the claims of another set of individuals before the
domestic courts does not obviate or change the interpretation of the
Optional Protocol. The authors have demonstrated that they are individuals
distinct from those of the three sets of parents that filed a complaint with
the ECHR. The authors in the present communication chose not to submit their
cases to the ECHR. The Committee, therefore, considers that it is not
precluded under article 5, paragraph 2 a), of the Optional Protocol from
considering the communication.
-------------------------------------------------------------------------------------------------------------------------------
[FN11] Sanchez Lopez v. Spain, (777/1997), Decision adopted on 22 October
1996.
-------------------------------------------------------------------------------------------------------------------------------
13.4 The Committee has taken note of the State party's argument that the
claims under articles 17 and 18 were not raised in domestic proceedings,
since the authors did not avail themselves of the possibility of applying
for partial exemption, and that domestic remedies were not exhausted in that
respect. However, both before the Committee and the domestic courts, the
authors' claimed that the compulsory nature of the CKREE subject violates
their Covenant rights, since cannot apply for full exemption from it.
Furthermore, the State party has explicitly confirmed that the claims made
in the communication were already assessed by domestic courts. The Committee
considers that the authors have exhausted domestic remedies in relation to
the claim in question.
13.5 The State party challenged the admissibility of the authors' claim
under article 26 because of non-substantiation, since the exemption clause
under the Norwegian Education Act applies to all parents, regardless of
their religion or life stance. The Committee does not share this view.
Consideration of whether there has been a differentiation between Christians
and other groups, and whether such differentiation is based on objective and
reasonable criteria, would be part of the merits consideration. The
Committee considers that the authors have sufficiently demonstrated, for
purposes of admissibility, that the exemption arrangements applicable to the
CKREE subject may differentiate between non-Christian parents and Christian
parents and that such differentiation may amount to discrimination within
the meaning of article 26.
13.6 Noting that the authors have withdrawn their claim presented under
article 27, the Committee decides that the communication is admissible
insofar as it raises issues under articles 17, 18, and 26, of the Covenant.
CONSIDERATION OF THE MERITS
14.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.
14.2 The main issue before the Committee is whether the compulsory
instruction of the CKREE subject in Norwegian schools, with only limited
possibility of exemption, violates the authors' right to freedom of thought,
conscience and religion under article 18 and more specifically the right of
parents to secure the religious and moral education of their children in
conformity with their own convictions, pursuant to article 18, paragraph 4.
The scope of article 18 covers not only protection of traditional religions,
but also philosophies of life, [FN12] such as those held by the authors.
Instruction in religion and ethics may in the Committee's view be in
compliance with article 18, if carried out under the terms expressed in the
Committee's General Comment No. 22 on article 18: "[A]rticle 18.4 permits
public school instruction in subjects such as the general history of
religions and ethics if it is given in a neutral and objective way", and
"public education that includes instruction in a particular religion or
belief is inconsistent with article 18, paragraph 4 unless provision is made
for non-discriminatory exemptions or alternatives that would accommodate the
wishes of parents or guardians." The Committee also recalls its Views in
Hartikainen et al. v. Finland, where it concluded that instruction in a
religious context should respect the convictions of parents and guardians
who do not believe in any religion. It is within this legal context that the
Committee will examine the claim.
-------------------------------------------------------------------------------------------------------------------------------
[FN12] General Comment No. 22 on article 18, adopted on 30 July 1993.
-------------------------------------------------------------------------------------------------------------------------------
14.3 Firstly, the Committee will examine the question of whether or not the
instruction of the CKREE subject is imparted in a neutral and objective way.
On this issue, the Education Act, section 2-4, stipulates that: "Teaching on
the subject shall not involve preaching. Teachers of Christian Knowledge and
Religious and Ethical Education shall take as their point of departure the
object clause of the primary and lower secondary school laid down in section
1-2, and present Christianity, other religions and philosophies of life on
the basis of their distinctive characteristics. Teaching of the different
topics shall be founded on the same educational principles". In the object
clause in question it is prescribed that the object of primary and lower
secondary education shall be "in agreement and cooperation with the home, to
help to give pupils a Christian and moral upbringing". Some of the travaux
préparatoires of the Act referred to above make it clear that the subject
gives priority to tenets of Christianity over other religions and
philosophies of life. In that context, the Standing Committee on Education
concluded, in its majority, that: the tuition was not neutral in value, and
that the main emphasis of the subject was instruction on Christianity. The
State party acknowledges that the subject has elements that may be perceived
as being of a religious nature, these being the activities exemption from
which is granted without the parents having to give reasons. Indeed, at
least some of the activities in question involve, on their face, not just
education in religious knowledge, but the actual practice of a particular
religion (see para 9.18). It also transpires from the research results
invoked by the authors, and from their personal experience that the subject
has elements that are not perceived by them as being imparted in a neutral
and objective way. The Committee concludes that the teaching of CKREE cannot
be said to meet the requirement of being delivered in a neutral and
objective way, unless the system of exemption in fact leads to a situation
where the teaching provided to those children and families opting for such
exemption will be neutral and objective.
14.4 The second question to be examined thus is whether the partial
exemption arrangements and other avenues provide "for non-discriminatory
exemptions or alternatives that would accommodate the wishes of parents or
guardians." The Committee notes the authors' contention that the partial
exemption arrangements do not satisfy their needs, since teaching of the
CKREE subject leans too heavily towards religious instruction, and that
partial exemption is impossible to implement in practice. Furthermore, the
Committee notes that the Norwegian Education Act provides that "on the basis
of written notification from parents, pupils shall be exempted from
attending those parts of the teaching at the individual school that they, on
the basis of their own religion or philosophy of life, perceive as being the
practice of another religion or adherence to another philosophy of life".
14.5 The Committee notes that the existing normative framework related to
the teaching of the CKREE subject contains internal tensions or even
contradictions. On the one hand, the Constitution and the object clause in
the Education Act contain a clear preference for Christianity as compared to
the role of other religions and worldviews in the educational system. On the
other hand, the specific clause on exemptions in Section 2-4 of the
Education Act is formulated in a way that in theory appears to give a full
right of exemption from any part of the CKREE subject that individual pupils
or parents perceive as being the practice of another religion or adherence
to another philosophy of life. If this clause could be implemented in a way
that addresses the preference reflected in the Constitution and the object
clause of the Education Act, this could arguably be considered as complying
with article 18 of the Covenant.
14.6 The Commitee considers, however, that even in the abstract, the present
system of partial exemption imposes a considerable burden on persons in the
position of the authors, insofar as it requires them to acquaint themselves
with those aspects of the subject which are clearly of a religious nature,
as well as with other aspects, with a view to determining which of the other
aspects they may feel a need to seek � and justify � exemption from. Nor
would it be implausible to expect that such persons would be deterred from
exercising that right, insofar as a regime of partial exemption could create
problems for children which are different from those that may be present in
a total exemption scheme. Indeed as the experience of the authors
demonstrates, the system of exemptions does not currently protect the
liberty of parents to ensure that the religious and moral education of their
children is in conformity with their own convictions. In this respect, the
Committee notes that the CKREE subject combines education on religious
knowledge with practising a particular religious belief, e.g. learning by
heart of prayers, singing religious hymns or attendance at religious
services (para 9.18). While it is true that in these cases parents may claim
exemption from these activities by ticking a box on a form, the CKREE scheme
does not ensure that education of religious knowledge and religious practice
are separated in a way that makes the exemption scheme practicable.
14.7 In the Committee's view, the difficulties encountered by the authors,
in particular the fact that Maria Jansen and Pia Suzanne Orning had to
recite religious texts in the context of a Christmas celebration although
they were enrolled in the exemption scheme, as well as the loyalty conflicts
experienced by the children, amply illustrate these difficulties.
Furthermore, the requirement to give reasons for exempting children from
lessons focusing on imparting religious knowledge and the absence of clear
indications as to what kind of reasons would be accepted creates a further
obstacle for parents who seek to ensure that their children are not exposed
to certain religious ideas. In the Committee's view, the present framework
of CKREE, including the current regime of exemptions, as it has been
implemented in respect of the authors, constitutes a violation of article
18, paragraph 4, of the Covenant in their respect.
14.8 In view of the above finding, the Committee is of the opinion that no
additional issue arises for its consideration under other parts of article
18, or articles 17 and 26 of the Covenant.
15. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose a violation of
article 18, paragraph 4, of the Covenant.
16. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the authors with an effective
and appropriate remedy that will respect the right of the authors as parents
to ensure and as pupils to receive an education that is in conformity with
their own convictions. The State party is under an obligation to avoid
similar violations in the future.
17. Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party has recognized the competence of the Committee to
determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2 of the Covenant, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant and to provide an
effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within ninety days,
information about the measures taken to give effect to the Committee's
Views. The State party is also requested to publish the Committee's Views.
_________________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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