Kjeldsen, Busk Madsen and Pedersen v Denmark

• Date: 27 December 1976
• Court: European Court of Human Rights

Kjeldsen, Busk Madsen and Pedersen Case

(Danish Sex Education Case)

(Chamber composed of: Balladore Pallieri, President; Verdross, Zekia, Mrs Pedersen, Petrén, Ryssdal and Evrigenis, Judges)

European Court of Human Rights.

The individual in international law — Human rights and freedoms — Education — Duty of State to respect religious and philosophical convictions of parents — Compulsory sex education in State schools — Duty of State to ensure that information is presented in an objective, critical and pluralistic manner — Duty of State not to pursue policy of indoctrination — Relevance of the existence of heavily subsidised private schools and right of parents to educate children at home — Right of exemption from religious but not from sex education — Whether discrimination in regard to a protected right — European Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 8, 9 and 14 — First Protocol to the Convention, Article 2

Procedure of the European Court of Human Rights — Applicant wishing to withdraw application after matter referred to Court by European Commission on Human Rights

Summary:1The facts:—The Applicants were the parents of Danish children of school age. They objected to the Danish system of sex education which was an integrated, and therefore compulsory, part of the curriculum of State primary schools. Under Danish law, parents were entitled to send their children to State schools, to private schools (which were heavily subsidised by the State) or to educate them at home. After a number of official enquiries and much public discussion over a period of many years, a system of sex education had been introduced into the curriculum of the State schools. The Applicants objected to the fact that their children, who attended State schools, were not permitted to absent themselves from the sex education classes. They maintained that the authorities' refusal to grant their children exemption from attending these classes was a violation of Article 2 of the First Protocol to the European Convention,2 since it displayed a refusal to respect the religious and philosophical convictions of

the parents. They also alleged breaches of Articles 8,3 94 and 145 of the Convention. The Applicants gave a number of reasons, including expense, why they were unable to send their children to private schools.

Proceedings before the Commission

The parents' applications were declared admissible and joined by the Commission. In its report of 21 March 1975 the Commission expressed the opinion:

• —(by seven votes to seven, with the President exercising his casting vote in accordance with the Commission's Rules of Procedure), that there had been no violation of Article 2 of Protocol No. 1 in the existence, per se, of the Danish system of sex education;

• —(unanimously), that there had been no violation either of Article 8 or of Article 9 of the Convention;

• —(by seven votes to four, with three abstentions), that no violation of Article 14 of the Convention had been disclosed by the facts of the case.

The case was filed with the Court by the Commission on 24 July 1975.

Proceedings before the Court

Although the Danish Government had originally declared that it intended to contest the jurisdiction of the Court, it withdrew its objections on this ground and the Court heard arguments on the merits. On 13 May 1976 the Kjeldsens informed the Court that they wished to withdraw their application and requested either that they be given a separate hearing or that their case be withdrawn. The Court gave judgment on 7 December 1976.

Held:—(1) (by six votes to one), that there had been no breach of Article 2 of Protocol No. 1 or of Article 14 of the Convention taken together with Article 2;

(2) (unanimously), that there had been no breach of Articles 8 and 9 of the Convention taken together with Article 2 of Protocol No. 1.

Preliminary Questions:—The purported withdrawal of the case by the Kjeldsens was without legal consequence. Individuals are not entitled to refer cases to the Court. Because the other cases were pending, moreover, striking the case out of the Court's list would be devoid of any practical interest. Secondly, the Court wished to define the limits of its investigation. It was concerned with the Danish Act of 1970 and delegated legislation issued thereunder, but not with the particular measures of application adopted in each educational area or institution (pp. 137–40).

On the alleged violation of Article 2, First Protocol:—The Danish Government had submitted that its obligation under the second sentence of Article 2 (‘In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’) was fulfilled through its system of private schools and the possibility of education at home. The Court rejected this argument. The second sentence aimed at safeguarding the possibility of pluralism in education which possibility was essential for the preservation of the ‘democratic society’ conceived of by the Convention. In view of the power of the modern State, it was above all through State teaching that this aim had to be realised. Thus State schools did not fall outside the province of Article 2. However, the Court did not overlook, in determining whether there was a breach of that Article, that the functions assumed by the State in relation to education and to teaching included the grant of substantial assistance to private schools, though it also acknowledged that recourse to such schools could involve parents in sacrifices.

The Court also rejected a further Danish submission that the second sentence of Article 2 implied solely the right for parents to have their children exempted from classes offering ‘religious education of a denominational character’. Article 2 applied to all functions assumed by the State in regard to education and to teaching and thus affected the entire State education programme. The Court stated that the setting and planning of school curricula fell, in principle, within the competence of Contracting States. Article 2 did not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It would be very difficult for many subjects taught at school not to have some philosophical character or implications. However, the second sentence of Article 2 required the State to take care that information or knowledge included in the curriculum was conveyed in an objective, critical and pluralistic manner. The State was forbidden to pursue a policy of indoctrination that might be considered as a failure to respect the religious and philosophical convictions of parents. That was the limit that must not be exceeded. By such an interpretation, consistency was maintained with Articles 8 to 10 of the Convention and with its general spirit.

In the particular case, the Court, noting the expert advice that had been obtained by the Danish legislator, referred to the ‘known fact’, that in Denmark children discovered without difficulty the information that interested them about sexual life. The school instruction that was provided was done less to instil knowledge than to give pupils such knowledge more correctly, precisely, objectively and scientifically. The Court accepted that, even when thus circumscribed, such instruction could not altogether avoid situations in which appraisals of fact led on to value-judgments. Nevertheless, examination of the legislation established that it did not amount to an attempt at indoctrination aimed at advocating a specific kind of sexual behaviour. It did not affect the right of parents to enlighten and advise their children or to guide them in line with their religious or philosophical convictions (pp. 140–5).

On the alleged violation of Article 14 of the Convention taken together with Article 2, First Protocol:—The Applicants had pointed out that Danish legislation permitted parents to have their children exempted from religious instruction classes while offering no similar possibility in regard to integrated sexual education. The Court stated that Article 14 prohibited treatment which discriminated on the ground of a personal characteristic by which persons or groups were distinguishable from one another. The contested legislation did not envisage such treatment. It held, moreover, that there was a difference in kind between religious and sex education. The former disseminated tenets and not mere knowledge. Thus the assailed distinction was founded on dissimilar factual circumstances and was consistent with Article 14 (pp. 145–6).

Judge Verdross (in a separate opinion) drew a distinction between factual information on human sexuality, which came within the scope of the natural sciences, and information concerning sexual practices including contraception. The former was neutral from the standpoint of morality whereas the latter, even if communicated to minors in an objective fashion, always affected the development of the conscience. Thus even objective information on sexual activity when given too early at school could violate the Christian convictions of parents who accordingly would have the right to object. In his view, there was nothing in Article 2 justifying the Court's restrictive interpretation and reliance on the concept of ‘indoctrination’. The existence of private schools did not affect his opinion. A private school presupposed the existence of a group of persons sharing certain convictions. But the Article 2 obligation for States required that the religious convictions of even one couple must be respected. Private education, moreover, entailed material sacrifices. If no exemption were avilable from the classes which were objected to, there would exist an unjustified discrimination...