AS TO THE ADMISSIBILITY OF. Application No /85 by the Ingrid Jordebo FOUNDATION of Christian Schools and Ingrid JORDEBO against Sweden

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1 AS TO THE ADMISSIBILITY OF Application No /85 by the Ingrid Jordebo FOUNDATION of Christian Schools and Ingrid JORDEBO against Sweden The European Commission of Human Rights sitting in private on 6 March 1987, the following members being present: MM. C. A. NØRGAARD, President G. SPERDUTI J. A. FROWEIN F. ERMACORA E. BUSUTTIL G. JÖRUNDSSON G. TENEKIDES S. TRECHSEL B. KIERNAN A. S. GÖZÜBÜYÜK A. WEITZEL J. C. SOYER H. G. SCHERMERS H. DANELIUS G. BATLINER J. CAMPINOS H. VANDENBERGHE Mrs. G. H. THUNE Sir Basil HALL Mr. F. MARTINEZ Mr. H. C. KRUGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 2 May 1985 by the Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo against Sweden and registered on 7 May 1985 under file No /85; Having regard to - the first report provided for in Rule 40 of the Rules of Procedure of the Commission; - the Commission's decision of 4 December 1985 to invite the Government to present written observations on the admissibility and merits of the application; - the Government's observations dated 13 May 1986 and the applicants' reply dated 6 August 1986; - the Commission's decision of 18 May 1986 to grant legal aid to Mrs. Jordebo; - the second report provided for in Rule 40 of the Rules of Procedure; THE FACTS Having deliberated; Decides as follows:

2 The facts of the case may be summarised as follows. The applicants are the Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo, a Swedish citizen born in 1930 and resident at Jönköping. Mrs Jordebo is the headmistress of the Anna School which she runs through the Foundation. Mrs Jordebo represents the Foundation before the Commission. The Anna School was started in It is the only non-public school for pupils of compulsory school age (7-16 years) at Jönköping. The State-municipal public school is run by the School Board (skolstyrelsen) of Jönköping. In the school year 1982/83 there were classes 1 to 6 (low and middle stage) at the Anna School. In addition, class 7 was run on a trial basis after the approval of the School Board. In the school year 1983/84, the Foundation applied for permission to run classes 1 to 6 and 7 to 9 (upper stage). On 21 June 1983 the School Board of Jönköping granted permission for classes 1 to 6 and refused permission for classes 7 to 9. The Foundation then made a new application for classes 7 to 9, which was rejected by the School Board on 23 August It appears from the decision that it was calculated that three pupils would attend the seventh form, and two pupils the eighth form. None of the proposed teachers had formal competence to teach in the seventh and eighth forms, and only Mrs Jordebo had formal competence as a teacher, but only for the middle stage. The Foundation appealed to the National School Board (skolöverstyrelsen) which on 18 April 1984 rejected the appeal for the following reasons: "According to Section 34 of the School Act (skollagen) an independent school should be approved for fulfilment of the school duty provided that the education at the school gives knowledge and skill which as regards their nature and level essentially correspond to the knowledge and skill given by the public school, and the school otherwise corresponds to the general objectives of the public school. The approval should be revoked when the school no longer satisfies these conditions and the deficiencies cannot be removed after contact with the principal. The Anna School does not have State regulated posts and formal competence of the teachers cannot therefore be required. Of course, this does not mean that one could disregard the requirement as to the quality of the education. Both the School Board and the County School Council (länsskolnämnden) have found that the upper stage education which is run at the Anna School does not give knowledge and skill of a nature and level which essentially correspond to the knowledge and skill given by a public school. The National School Board rejects the appeal." The Foundation appealed to the Government (the Ministry of Education), which on 13 December 1984 rejected the appeal. While the case was pending before the Government, the Foundation carried out teaching for classes 7 and 8 of the school year

3 1983/84. Mrs Jordebo has a daughter born in 1969, who if possible would have attended the eighth form. COMPLAINTS 1. The applicants submit that only by taking part in the teaching of the seventh and eighth forms at the Anna School would it be possible for Mrs Jordebo's daughter to receive teaching in conformity with Mrs Jordebo's religious belief. Accordingly, the applicants allege a violation of Article 2 of Protocol No The applicants submit that it is a "civil right" to run school activities in accordance with Section 34 of the School Act. It is alleged that Article 6 of the Convention has been violated since this "right" could not be examined by a court. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 2 May 1985 and registered on 7 May On 4 December 1985 the Commission decided to invite the Government to present written observations on the admissibility and merits of the application, in particular the complaint under Article 6 of the Convention. The Government's observations were received by a letter dated 13 May 1986 and the applicant's observations in reply were received by a letter of 6 August Legal aid was granted to Mrs Jordebo on 18 May SUBMISSIONS OF THE PARTIES A. The Government 1. Swedish Legislation Concerning Compulsory School Education The Swedish school system is regulated by the 1962 School Act and the 1971 School Decree (skolförordningen). The Act and the Decree are supplemented by the 1980 Compulsory School Curriculum (läroplan för grundskolan), issued by the Government on the basis of guidelines laid down by the Riksdag. The basic education, aimed at children of an approximate age of 7-16 years, is according to Section 30 of the Act compulsory. This compulsory, basic education is a significant element in meeting the overriding responsibility of the society of educating and teaching children and young people. As summarised in a recent Government Bill, the goals of this part of the children's education are to give them the basic knowledge and skills in a broad sense which are necessary for their participation in the life of the community and, thus, to prepare them for entering the working life or higher education (Government Bill 1982/83:1, p. 14). According to Sections 23 and 28 of the Act, every child has a right to receive, free of charge, this basic education at a public school. The following two excerpts from the introductory part of the Compulsory School Curriculum give a basic idea of the general goals of public sector school education and also indicate some of the particular issues, a basic knowledge and understanding of which are deemed essential to each individual in an enlightened and democratic

4 society (pages 13 and 15): "Compulsory school is part of society. The curriculum reflects a democratic view of society and its members, the implication being that human beings are active and creative and that they both can and must assume responsibility and seek knowledge in order to co-operate with others in understanding and improving their own living conditions and those of other people. The content and working methods of schools must be designed in such a way as to be conducive to this attitude towards people and society. It is the duty of schools to give their pupils increased responsibility and powers of co-determination as they grow older and become increasingly mature.... Compulsory schools do not provide any instruction focusing on particular occupations. The fields of knowledge which are to be dealt with must be fundamentally important to everybody, irrespective of their future activities. This means, for example, that schools must familiarise their pupils with questions of belief, with major issues concerning human relations and survival, with international affairs, with science of technology, with resource conservation, with environmental questions, with economic questions, with questions concerning working life and the labour market, with cultural questions, with family questions, with sexual matters, with immigrant affairs, with law and justice, with questions concerning road traffic, and with the hazards involved in alcohol, drugs and tobacco. All pupils must acquire a knowledge of at least one foreign language. A prominent place must be given to knowledge with an important bearing on everyday life." Although the vast majority of Swedish children fulfil the compulsory part of their education within the public school system, the School Act offers a possibility of attending private schools. However, in view of the public interest in giving to each individual certain basic knowledge and skills, and also the society's overriding responsibility towards the children in respect of the quality of any form of compulsory education offered, it has been deemed necessary to subject this possibility to certain conditions. According to Section 33a of the Act, the compulsory education may be conducted at a private school provided that the school is formally approved for this purpose. According to Section 34, such an approval shall be granted provided that "the education at the school gives knowledge and skills which as regards their nature and level essentially correspond to the knowledge and skills supplied by the public school and the school also otherwise essentially corresponds to the general goals of the public school". The same section provides that the approval be revoked in case the school "no longer satisfies the requirements for approval and the deficiencies could not be redressed upon reference to the principal". The travaux préparatoires clearly reflect that the solution regarding private schools outlined above is the result of a well-balanced compromise between two possibly conflicting interests. On the one hand, it was recognised that the principle of the freedom of individuals, forming one of the corner-stones of the Swedish society, requires the existence of a possibility to run and to attend private schools (Government Bill 1982/83:1, p. 15). On the other hand, it was emphasised that one should not give up the requirements of ensuring to each individual the minimum amount of knowledge and

5 skills necessary for his or her participation in the life of the society by allowing the compulsory school attendance to be fulfilled at private schools offering insufficient education (idem). In commenting on the solution chosen, it was stated that the requirement to be met by private schools in the interest of both society and the children would be to ensure that their pupils would not miss any essential part of the education that they could have acquired within the public school system (Government Bill 1982/83:1, p. 18). Moreover, it was emphasised that this would afford the private schools considerable leeway in respect of the manner of teaching as well as the substance of the education (idem at pp ). In particular, it was pointed out that it should be possible at a private school to give certain topics a more, and others a less, prominent position than that given in public schools and that the activity in a private school should be allowed "within very wide ranges to bear the stamp of different views and values" (idem at pp ). According to Section 10 of the Act, a decision to approve a private school or to revoke such an approval is to be taken by the Local School Board. Its decision may, according to Sections 53 and 54a of the Act, be appealed to the National School Board and ultimately to the Government. Under Sections 50b and 50c of the Act, private schools are subject to supervision by the school authorities in respect of that part of their educational programmes which concerns children subject to compulsory school attendance. This should be viewed against the society's overriding responsibility for the basic education and teaching of such children and, in particular, the provisions outlined above. 2. The Facts As a matter of clarity, the Government make the following remarks: The only object of the disputed decision of the School Board of Jönköping was to determine whether, by subjecting themselves to the education in question, children would be able to complete the compulsory school education laid down in the School Act. Consequently, the legal implications of the decision in the negative was not that the school was prevented from offering education on a private basis or that Mrs Jordebo was prevented from having her daughter educated outside the public school system, but only that the education intended to be offered at the school would not satisfy the requirements of compulsory school education. The decision of the School Board of Jönköping not to grant approval as regards the classes 7-9 was exclusively based on the finding that the education offered on this level did not satisfy the minimum quality requirements laid down in Section 34 of the School Act. As appears from particularly the Board's decision of 21 June 1983, the opinion as regards the quality was based on, among other things, observations made during a number of visits to the school and also an evaluation of the proficiency tests taken by the pupils of class 7 during the school year of 1982/ The Admissibility The Government have no objection to make as far as the domestic remedies' rule and the six months' rule in Article 26 is concerned. However, the Government submit, with reference to what is said below, that the complaint under Article 6 of the Convention should be

6 rejected as being incompatible ratione materiae with the Convention for falling outside the scope of the Convention and that the complaint under Article 2 of Protocol No. 1 should be rejected as being incompatible ratione materiae with the Convention for falling outside the scope of that provision or, alternatively, for being manifestly ill-founded. 4. The Merits 4.1 Article 6 of the Convention The Government contend that it comes within the exclusive power of a State to decide whether or not to subject its citizens to compulsory school education. It is also for the State to determine the substance of such education as well as the manner in which it is to be given. Even though a State's power in this respect may be subject to various limitations as a result of, for instance, treaty obligations, the exercise of such power could not, in the Government's opinion, be viewed as anything else than the performance of public functions exclusively vested in the State. From this follows that no individual or institution is in a position to claim any right in the sense that the State would be obliged to designate any particular school or category of schools for the purpose of administering compulsory school education. It goes without saying that the State is free to entrust parts of its functions of administering compulsory school education to private individuals or institutions. However, in the Government's view this does not in any way alter the public character of the function. Consequently, the State is still at liberty not only to decide whether to entrust public schools with this kind of education, but also unilaterally to lay down the conditions for doing so and to judge whether in a certain case these conditions are met. In view of this, and since the only implication of the disputed decision of the School Board was that the education in question would not be recognised as satisfying the requirements of compulsory school education, the Government submit that the present case could not possibly involve any "rights" that might be characterised as "civil" within the meaning of Article 6 para. 1 of the Convention. Consequently, the Government maintain that the complaint falls outside the scope of the Convention. In case the Commission does not share this view, the Government add the following: It could be argued that a school offering education on a private basis may engage in activities of an essentially private law character, and that these activities in turn may give rise to rights which could be characterised as "civil" within the meaning of Article 6. Furthermore, the possibility of exercising such rights might well, in practice, be affected by a decision not to recognise the school for the purpose of administering compulsory school education. The question may be asked, therefore, whether the possible existence of such rights is sufficient to bring a case like the present one within the scope of Article 6 para. 1. The question is particularly justified in view of the position taken by the European Court of Human Rights in a number of recent cases involving professional and commercial activities primarily aimed at offering products or services to presumptive consumers (see e.g., Eur. Court H.R., König judgment of 23 April 1977, Series A no. 27, Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43 and Benthem judgment of 23 October 1985, Series A no. 97). Despite the outcome of these cases, the Government submit, for the following reasons, that the question has to be answered in the negative in

7 the present case. From the wording of Article 6 follows that, for proceedings concerning civil rights to come within the scope of the Article, the object of the proceedings has to be the "determination" of such rights. In a case like the present one, the only possible rights that could be involved are those alluded to above. As regards education of children of compulsory school age, however, such rights could only accrue subsequent to a decision to recognise the school for such education. As regards the education referred to in the complaint, no such recognition was ever granted. Consequently, and unlike the situation in the previous cases mentioned above, the disputed decision of the School Board in the present case did not concern, nor did it affect, any such rights. Applying Article 6 para. 1 to the present case, therefore, would in the Government's opinion clearly be to disregard the natural and ordinary meaning of the text and to read into the Convention something that is not there. In support of this reasoning, the Government invoke the judgment of the Court in the case of Le Compte, Van Leuven and De Meyere. Observing that proceedings, in order to come within the scope of Article 6 para. 1, had to be "decisive" for a civil right, the Court construed this to mean that the right had to be "the object - or one of the objects - of" the dispute and that "the result of the proceedings (had to) be directly decisive for such a right" (para. 47). Furthermore, there are other significant differences that clearly distinguish the present case from those referred to above. Thus, the activities involved in the latter cases have been of a quite different character than the one now in question. The reason for the State interest in the activities involved in the previous cases has been, not the significance of the activities as such, but health hazards or similar concerns related to them. Such concerns apparently have constituted the entire supervision in one form or another, and the activities as such have preserved their essentially private character. Those entering into contractual or other relationships with the persons or entities carrying on the activities have done so exclusively with a view to the presumptive benefits directly flowing from these relationships. The proceedings have resulted in a prohibition to carry on the activities concerned and, consequently, also been directly and immediately decisive in respect of the rights involved. As regards the education now in question, on the other hand, the State interest is focused on the very activity as such. In view of its importance to society, children have been, without exceptions, placed under an unconditional obligation to attend school. A child of compulsory school age attending a duly recognised private school, therefore, would not only be engaged in a relation with the school, the nature of which arguably might be characterised as private, but it would also be simultaneously fulfilling an obligation imposed on it by society. Moreover, the disputed decision did not directly affect the arguable private aspects of the activities, i.e. the possible civil rights involved, but its only implication was that the education intended to be offered would not be recognised as satisfying the requirements of compulsory school education. Given these characteristics of the present case, the Government maintain that the case could not come within the scope of Article 6 even assuming that the disputed decision might have had some effects on the possibilities of exercising the rights of a civil character. Suffice it to say that such possible effects would clearly have been merely indirect and, besides, in the Government's view too remotely related to the object and purpose of the proceedings. In this context, the Government would again like to draw attention to the judgment of the Court in the Case of Le Compte, Van Leuven and De Meyere. In considering in general the relation between a dispute and

8 a civil right involved, the Court stated that "a tenuous connection or remote consequences" would not suffice to entail the application of Article 6, but indeed that the right need to be "the object - or one of the objects - of" the dispute and "the result of the proceedings must be directly decisive" for the right (p. 21, para. 47). To sum up, in the Government's view, the proceedings complained of did not involve the determination of any civil rights of the applicants. Consequently, the Government submit that the complaint falls outside the scope of Article 6 of the Convention. In case the Commission does not share this view, the Government admit that there was no access to a tribunal satisfying the requirements of Article 6 para. 1 of the Convention Article 2 of Protocol No. 1 According to the first sentence of Article 2, no person shall be denied the right to education. Clearly, this provision, using a negative rather than positive formula, places no positive obligation on the Contracting Parties in the sense that they would have to take effective steps such as establishing, subsidising or formally recognising educational establishments. This has also been consistently emphasised by the Court, which for instance in the Belgian Linguistic Case (Eur. Court H.R., Belgian Linguistic judgment of 23 July 1968, Series A no. 6) construed the provision as guaranteeing to persons "the right, in principle, to avail themselves of the means of instruction existing at any given time", but as laying down "no specific obligations concerning the extent of these means and the manner of their organisation or subsidisation" (p. 31). It is equally clear from the wording that also the second sentence exclusively concerns a State's system of education existing at any given time and that, therefore, it does not require a State to take any positive actions such as establishing or formally recognising any particular category of schools or education. Furthermore, when organising, developing and administering a system of education, the second sentence obviously places no other restraints on the State than an obligation to respect the religious and philosophical convictions of parents. There is clearly nothing, therefore, that prevents a State from laying down and applying certain minimum standards, related solely to the quality of the education offered, in determining whether to formally recognise education offered at a certain school as satisfying the requirements of compulsory school education. In the present case there is no allegation of a denial of the right to education within the existing school system. Furthermore, there is nothing in the complaint to indicate that the education offered within this system would not meet the requirements contained in the second sentence of Article 2. As has been pointed out above, the effect of the disputed decision was not that the applicant was prevented from offering private education or having her child educated outside the existing educational system, but only that the education intended to be offered at her school would not be recognised as satisfying the requirements of compulsory school education. The Government submit that Article 2 does not guarantee any right to such a recognition and that, therefore, the complaint falls outside the scope of this provision. In addition, the disputed decision was based exclusively on an evaluation of the quality of the education intended to be offered. Therefore, the Government alternatively maintain that the complaint is manifestly ill-founded. 5. Conclusion The position of the Government is

9 - that the application should be declared inadmissible for falling outside the scope of the Convention and Protocol No. 1 or, as regards the complaint under Protocol No. 1, alternatively for being manifestly ill-founded, and - that, in any event, there has been no violation of the Convention or Protocol No. 1. B. The Applicant 1. Article 6 of the Convention The Government's observations may be briefly summarised as follows: Article 6 is not applicable, there being no civil right at stake. If there is a civil right at stake, the decision complained of was not a "determination" of, nor "concerned" or "affected" such a right. The Government admit that there was no access to a tribunal satisfying the requirements of Article 6 para. 1. The applicants note that the Government have not given an answer to the question whether there was any "dispute", except possibly by inference by stating that there could be no valid claim. This however is a material question upon which a tribunal should decide. The applicants submit that the mere existence of the decisions of the School Board, the National School Board and the Government prove the existence of a "dispute" between the applicants and the authorities. The situation concerning Article 6 is not uncomplicated. Mrs Jordebo is concerned in two quite different respects: a. as conducting a private school, in competition with the schools kept by the municipal instances, b. as a parent of her daughter, whose education she wishes to have performed in a certain way in conformity with her religious and philosophical convictions. As regards a., it should be remembered that Mrs Jordebo makes a meagre living from the school. Her position as regards the families who send their children to the school is a contractual situation, manifestly of a civil character. The school has already taught the classes 1-6, and whether the children may stay on for three more years is evidently a question of a commercial situation, although Mrs Jordebo hates to look at her situation that way, the idealistic motive being entirely predominant. But man also lives of bread. The right to run a school is obviously a civil right. Thus, the existence of the school as a complete school is at stake, and there is a question of civil rights and obligations involved. The Government seem to regard the right to keep a school as something entirely within "le fait du Prince". But this is clearly different from the mainstream in the countries of the High Contracting Parties, necessitating an autonomous way of judgment. As regards b., it seems evident that the education of one's children is a private matter, and a question of civil rights and obligations. There is undeniably an obligation for parents to educate or have educated their children, and there is a right for the State to see to it that this is properly done. However, this is wholly compatible with the said obligation being a civil one. The Government

10 seem to look at schooling the same way as at military service, where of course no competing "private regiments" could be tolerated. Article 6 para. 1 obviously cannot give Mrs Jordebo any right to keep a school. Nevertheless, a tribunal would be able to judge in an independent manner whether the school is satisfactory and gives the pupils a tolerably good education, which is evidently the question to be resolved, and which has been resolved in a negative way, by three instances not satisfying the requirements of Article 6 para. 1. It would seem that not more than one such inferior instance is allowed (Ettl and others v. Austria, Comm. Report ), before a tribunal satisfying the requirements of Article 6 para. 1 should be available. The Government say that the applicants have not been denied the right to run a school. That is true. The decision of the Government is not formally to deny the right to run the school. But the decision of the Government means that the school is not allowed to receive pupils. This decision has the same importance as a formal decision to stop the school. If the school is not allowed to receive pupils it means that the school is prevented from functioning. If this is done through a formal decision to stop the school or through a decision that no pupils are allowed to go to the school is of no importance for the interpretation of the concept of "civil right" in Article 6 of the Convention. 2. Article 2 of Protocol No. 1 The Government's observations may be summarised as follows: No denial of the right to education has taken place. Nothing indicates that the education offered in the "existing school system" would not meet the requirements of the second sentence in Article 2. As to the interpretation of Article 2 of Protocol No. 1 the following is stated. The first sentence concerns the obligation for the State not to refuse anyone elementary teaching ("instruction"). The applicants have not alleged any violation in this sense. The second sentence concerns voluntary functions assumed by the State ("dans l'exercice des fonctions qu'il assumera"). What functions has the Swedish State assumed? If the State had permitted only one unitary school, the applicants' case had been much worse than it is. In fact, the State has not only tolerated private schools but has even given considerable financial means to some of them. For example, it has given much money to the so-called Waldorf schools which work on the principles of the anthroposophic movement created by Rudolf Steiner. It is notorious that the said Waldorf schools are extremely different from the normal municipal school. It is not for the applicants to dispute the value of their pedagogic methods. However, it is an example of the kind of functions assumed by the State as regards some schools in order to ensure education and teaching in conformity with parents' philosophical convictions. The State has obviously assumed the function to assure a certain standard of the teaching of the children. In controlling this standard the State must respect the parents' philosophical convictions, which may differ from one school to another. The applicants' school was founded with the aim of preserving the tradition of the Christian school in Sweden before the secularisation of the municipal schools. There is thus nothing odd or strange in these general ideas, although this kind of school no longer fits in the general system of a secularised school and State. Thus,

11 in the applicants' school, the teaching of religion, although oecumenical and not pertaining to any particular Christian sect or movement, is confessional and founded on Christian belief. There are morning prayers and prayers before and after meals, such as was common in all schools 30 years ago. It is Mrs Jordebo's opinion, both in her quality as a parent and as a school headmistress that these are reasonable things for a Christian person and form a respectable demand. Article 2 of Protocol No. 1 gives Mrs Jordebo, as a parent, the right to ensure such education and teaching all the more so since it falls within the scope of the functions which the State has in fact assumed. 3. Summary and final remark The State has the right to have the applicants' school inspected, but the judgment over the school and its quality should be made in an independent way, avoiding all harassment, by inspectors free of bias. The school has not been treated in such a way, and Mrs Jordebo's right, as a parent, has thereby been violated, as also by decisions of the instances which are bound to be biased by their coupling to the State and the municipal school system. Mrs Jordebo's conclusion is that her rights have been violated, both in her quality as a school leader and together with her school, which has legal personality in Swedish law, and in her quality as a mother of a child, pupil of her school. Finally, as general information the following is mentioned. Sweden is nearly unique among countries belonging to the Council of Europe as far as the school policy is concerned. In Sweden it is a basic political idea, which has governed the political leaders for a long time, that the State and the local municipal authorities must control the education: what the children have to learn and in which ways they have to receive the education must in every instance be decided by the political majority of the country. For this reason private schools, although formally allowed, are in practice stopped with all means. The children should be kept within the State-municipal public schools in order to prevent any other influence on the education than such as has been accepted by the political majority. A formal decision has been made that not more than 0.3 % of the children of compulsory school age may be allowed to visit private schools, three out of 1000 children. The whole Swedish school system is very close to violating Article 9 of the Convention when it says that everyone is guaranteed the right to think freely. The idea is that the Swedish school children are in principle led to think only in the directions that are decided by the political majority of the Parliament. When this majority has decided that the public education should be non-confessional, it means that this majority can allow only three children out of 1000 to have a confessional education. To maintain a democratic outlook, private schools cannot be totally forbidden but instead economic rules have been adopted to stop private schools in Sweden in reality. These measures are very efficient. The Anna school has, in spite of all these difficulties of a financial kind, been successful and created an alternative in Jönköping. Then other ways have been used in order to stop its development. In this respect it is easy to say that the education offered at the Anna school is not good enough. In the applicants' opinion the education offered to the children was good enough for reasons which it is not necessary to explain here. THE LAW 1. The applicants have complained of the fact that it has not been possible for Mrs Jordebo's daughter to attend the seventh and

12 eighth forms at the Anna School. They have alleged that this is a breach of Article 2 of Protocol No. 1 (P1-2). Article 2 of Protocol No. 1 (P1-2) reads as follows: "No person shall be denied the right to education. 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." The Government submit that this complaint is incompatible ratione materiae with the provisions of the Convention and Protocol No. 1, (P1) alternatively manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. The Commission considers that the applicants' complaint can only be examined by the Commission in so far as it is brought by Mrs Jordebo. The Foundation cannot claim to be a "victim" of a breach of Article 2 of Protocol No. 1 (P1-2) within the meaning of Article 25 (Art. 25) of the Convention. Insofar as this complaint is brought by the Foundation it follows that the complaint is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 27 para. 2 (Art. 27-2) of the Convention. The fact on which the alleged breach of Article 2 of Protocol No. 1 (P1-2) is based, is the fact that the Foundation has not been permitted to run the seventh and eighth forms of the compulsory school. The question which arises is whether Article 2 of Protocol No. 1 (P1-2) could be interpreted as granting a right to start and run a private school, and whether, when a private school is as such approved, the school should have a right to run classes at all stages of the compulsory school. Article 2 of Protocol No. 1 (P1-2) is dominated by its first sentence, which enshrines the right of the child to education, while the second sentence, being an adjunct to the first sentence, enshrines the right of the parents to ensure to their child such education and teaching as conforms with the parents' religious and philosophical convictions (see Eur. Court H.R., Campbell and Cosans judgment of 25 February 1982, Series A No. 48, para. 40). Article 2 of Protocol No. 1 (P1-2) does not require the States to establish any specific educational system. It guarantees, however, that persons subject to the jurisdiction of a Contracting State should have the right to avail themselves of the educational institutions existing at a given time. The Convention organs have recognised that the right to education calls for regulation by the State, "regulation which may vary in time and place according to the needs and resources of the community and of individuals" (cf. Eur. Court H.R., Belgian Linguistic judgment of 23 July 1968, Series A, 1968, pp ). In the Belgian Linguistic Case, the Court found that the refusal of the Belgian State to establish or subsidise, in the Dutch unilingual region, primary school education in which French was employed as the language of instruction was not incompatible with the requirements of Article 2 of Protocol No. 1 (P1-2) (op cit, p. 42). The Commission considers that it follows from the judgment of the European Court of Human Rights in the Case of Kjeldsen, Busk Madsen and Pedersen (judgment of 7 December 1976, Series A no. 23, pp , para. 50) that Article 2 of Protocol No. 1 (P1-2) guarantees the right to start and run a private school. However, such a right cannot be a right without conditions. It must be subject to regulation by the State in order to ensure a proper educational system as a whole. The Commission recalls that the decision not to grant approval as regards classes 7-9 was based exclusively on the finding that the education offered at this level did not meet the condition as to the quality provided for in Section 34 of the School Act. Having examined

13 the present case, in particular the reasons for refusing the Foundation permission to run the upper stage of the compulsory school, the Commission finds the refusal compatible with Article 2 of Protocol No. 1 (P1-2). Moreover, the applicants have not substantiated that other schools which were available to Mrs Jordebo's daughter provided teaching which was in conflict with Mrs Jordebo's religious and philosophical convictions, even assuming that no other Christian school was available in the area. In these circumstances, the Commission finds no indication of a breach of Article 2 of Protocol No. 1 (P1-2). It follows that, in this respect, the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicants also complain that they have not had the benefit of a court determination of their "civil right" to conduct school activities pursuant to Section 34 of the School Act. They allege a violation of Article 6 para. 1 (Art. 6-1) of the Convention, which in its first sentence provides that: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." The Commission first notes that the Foundation has been authorised to run a private school corresponding to the lower and middle stages (classes 1 to 6) of the public school. In this respect there is thus no dispute ("contestation") between the applicants and the authorities and, accordingly, a "determination" by a "tribunal" within the meaning of Article 6 (Art. 6) of the Convention is not required. The Government submit that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. They contend that a "civil right" of the applicants was not determined when the School Board refused to accept that the proposed teaching at the Anna School for the seventh to the ninth form could be counted as fulfilment of the school obligation. The Government also submit that there was no "determination" of any possible civil rights. The Government point out that the disputed decision did not prevent the Anna School from offering education on a private basis and did not prevent Mrs Jordebo from having her daughter educated outside the public school system. It only meant that the proposed education at the school would not satisfy the conditions for compulsory school education. The Commission notes that the administrative proceedings concerned have been brought by the Foundation, and not by Mrs Jordebo in her personal capacity. It follows that only the Foundation can, within the meaning of Article 25 (Art. 25) of the Convention, claim to be a "victim" of a breach of Article 6 (Art. 6). Accordingly, insofar as this complaint is brought by Mrs Jordebo herself it is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 27 para. 2 (Art. 27-2). The issues to be determined are whether any serious dispute arose between the Foundation and the authorities with regard to the decision under Section 34 of the School Act not to approve the proposed upper stage education at the Anna School for fulfilment of the school obligation and whether this decision was a "determination" of a "civil right" of the Foundation. If these questions were answered in the affirmative, Article 6 para. 1 (Art. 6-1) of the Convention would require access to a "tribunal" satisfying the conditions of Article 6 (Art. 6) for the determination of any

14 such dispute. In this respect the Government admit that no such access to a "tribunal" existed for the Foundation. The Commission has carried out a preliminary examination of the question of the applicability of Article 6 para 1 (Art. 6-1) of the Convention. It considers that this question raises such important issues of fact and law that its determination should depend upon an examination of the merits. This aspect of the application must therefore be declared admissible, no other ground for declaring it inadmissible having been established. For these reasons, the Commission DECLARES ADMISSIBLE without prejudging the merits, the complaint that the Foundation did not have access to a tribunal satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the Convention for the determination of whether the Anna School should be approved for running the seventh to ninth forms of the compulsory school. DECLARES INADMISSIBLE the remainder of the application. Secretary to the Commission President of the Commission (H. C. KRÜGER) (C. A. NØRGAARD)