SANIEWSKI v. POLAND
Inadmissible
The applicant is a Polish national, born in 1980 and living in Pionki. On 20 June 1997 the applicant obtained a school report for the school year 1996/97. He attended a State secondary school in Pionki. The report contained a list of courses that he had followed during this year, including “religion/ethics”, and marks obtained for his progress. The place reserved for “religion/ethics” contained no mark, but was left blank. Likewise, places reserved for certain other subjects such as “informatics”, “music” and “fine arts” were left blank. Article 53 of the Constitution of Poland, adopted on 2 April 1997, provides that freedom of faith and religion shall be ensured to everyone. Pursuant to this Article, freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing rites or teaching. Freedom of religion shall also include the possession of sanctuaries and other places of worship as well as the right of individuals, wherever they may be, to benefit from religious services. According to this Article, parents shall have the right to ensure their children’s moral and religious upbringing and teaching in accordance with their convictions. The religion of a church or other legally recognised religious organisation may be taught in schools, but the freedom of religion and conscience of others shall not be infringed thereby. The freedom to express publicly one’s religion may be limited only by means of statute and only where this is necessary for the defence of State security, public order, health, morals or the rights and freedoms of others. No one shall be compelled to participate in religious practices or prevented from such participation. No one may be compelled by the organs of a public authority to disclose his philosophy of life, religious convictions or beliefs. Other provisions on freedom of religion and conscience are laid down in the Freedom of Conscience and Religion Act of 17 May 1989, as amended, which reads as follows: "1. Poland (...) shall secure to its citizens freedom of conscience and religion. 2. Freedom of conscience and religion includes freedom to choose one's religion or belief and freedom to manifest one's religion or belief, either alone or in community with others, in private and in public. (...)" "In the exercise of their freedom of conscience and religion, citizens may in particular: (...) 2a) belong, or not belong, to churches or other religious communities; 3) express their religious opinions; 4) raise their children in conformity with their religious convictions; 5) remain silent as to their religion or convictions, ... ." The majority of schoolchildren attend State schools. In August 1990 the Ministry of Education issued two Ordinances, introducing religious instruction in Roman Catholicism and other religions into public schools on a voluntary basis. A declaration was to be made by parents in primary schools, and pupils in secondary schools, to confirm whether the pupils wished to attend. Separate school reports were to be issued with marks for religious instruction. The Ombudsman lodged a constitutional complaint with the Constitutional Court (Trybunał Konstytucyjny), challenging the conformity of certain provisions of those Ordinances with the law. The Ombudsman considered that they breached the statutory guarantee of the right to remain silent with regard to one's religion and convictions, as provided for in the Freedom of Conscience and Religion Act of 1989. He contended that the Ordinances disclosed a breach of this guarantee as their implementation would result in an obligation to reveal the religious convictions of parents and children. In a decision of 30 January 1991, the Constitutional Court found that voluntary religious tuition at school was not in breach of the Freedom of Conscience and Religion Act. The court considered that by allowing a child to attend religious instruction a parent is not obliged to reveal his or her beliefs, since a non-believer could agree to the child attending such classes whereas a believer could refuse. It further considered that the right to remain silent with regard to one's religion and convictions could not be interpreted as an obligation to remain silent. The Court stressed that neither declaring one's wish to attend religious instruction nor the instruction itself was mandatory. On 15 April 1992 the Minister of Education enacted a new Ordinance on the organisation of religious instruction in public schools. The Ordinance replaced the 1990 Ordinance referred to above. It provides for participation in religious instruction on a voluntary basis, a course on ethics being organised on the same voluntary basis for those pupils who do not wish to attend such instruction. It further provided for marks for "religious instruction/ethics" to be included in the official school reports. Article 9 of the Ordinance provides that the school report should not contain any data which would disclose whether a pupil attended a course in any particular religion or in ethics "in order to eliminate any possible opportunities for intolerance" ("w celu wyeliminowania ewentualnych przejawów nietolerancji"). In August 1992 the Ombudsman filed a constitutional complaint against this Ordinance with the Constitutional Court. The Ombudsman submitted that including marks for religious instruction in an official school report breaches the principle of the separation of churches and the State, and infringes the right to remain silent about one's beliefs and convictions, guaranteed by law. In a decision given on 30 April 1993, the Constitutional Court found that including marks for "religion/ethics" in official school reports did not reveal whether a pupil had attended one course or the other. Therefore, the court found it unnecessary to examine the question whether the impugned Ordinance had infringed the right to remain silent regarding one's religion and convictions. On 14 April 1997 Poland ratified the concordat with the Vatican. Article 12 (1) of the concordat reads as follows: “The State, respecting the right of parents to ensure the religious education of their children and the principle of tolerance, shall guarantee that public primary and secondary schools and pre-school establishments, run by the State and local government administration, organise, if interested persons so wish, courses in religious education within the framework of school and pre-school curricula.” In accordance with Article 33a of the Constitution of 2 April 1997, the Constitutional Court rules on the conformity of statutes and other normative acts enacted by the main and central State organs with the Constitution, and establishes a universally binding interpretation of laws. Pursuant to Article 79 of the Constitution, everyone whose constitutional rights or freedoms have been infringed shall have the right to request a ruling by the Constitutional Court as to the conformity with the Constitution of a statute or another normative act, on the basis of which a court or organ of public administration has given a final decision impinging upon the complainant’s constitutional rights or freedoms. Under Article 188 of the Constitution, the Constitutional Court shall give rulings concerning, inter alia, the conformity of statutes and international agreements with the Constitution, and also the conformity of provisions enacted by central State organs with the Constitution, as well as that of ratified international agreements and statutes. Under the provisions of the Constitutional Court Act of 1 August 1987, a constitutional complaint should not be directed against an individual act of application of legal provisions, such as an administrative decision or a judicial decision. Its purpose and scope should be limited to challenge the compatibility with the Constitution of legal provisions which served as a legal basis for such an individual act. The complaint shall indicate which constitutional rights or freedoms have been violated by a statute, ordinance, order, or other normative act complained of, and contain a description of the alleged violation. It should be lodged with the court within three months after a final individual decision has been served on the complainant.