DOJAN AND OTHERS v. GERMANY
Inadmissible
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
The applicants are German nationals who all live in Salzkotten, North Rhine-Westphalia. Mr Willi Dojan, a locksmith, and his wife Anna Dojan, a housewife, who were born in 1960 and 1966 respectively, lodged a complaint in their own right and as representatives of their son David, who was born in 1993 (application no. 319/08). Mr Theodor Fröhlich, a locksmith, and his wife Lydia, a housewife, born in 1967 and 1964 respectively, lodged a complaint in their own right and as representatives of their daughter Elly, who was born in 1995 (application no. 2455/08). Applications were also lodged by Mr Artur Wiens, a carpenter, and his wife Anna Wiens, a housewife, who were born in 1975 and 1977 respectively (application no. 7908/10), Mr Eduard Wiens, an electronic mechanical engineer, and his wife Rita Wiens, a housewife, who were born in 1972 and 1974 respectively (application no. 8152/10), and Mr Heinrich Wiens, a cabinetmaker, and his wife Irene Wiens, a housewife, who were born in 1961 and 1965 respectively (application no. 8155/10). Messrs Artur, Eduard and Heinrich Wiens are brothers. The applicants Dojan and the three couples Wiens were represented before the Court jointly by Mr R. Kiska, a lawyer practising in Bratislava and Mrs G. Eckermann, a lawyer practising in Dreieich. The applicants Fröhlich were represented by Mrs G. Eckermann alone. The applicants are members of the Christian Evangelical Baptist Church and hold strong moral beliefs as part of their religious faith. Each of the five couples have several children who attend or who attended a local public primary school in Salzkotten, North Rhine-Westphalia. Mandatory sex education classes form part of the school curriculum in the fourth year of primary schooling. In 2006, the school conference (Schulkonferenz) – a body established at every school consisting of the school’s principal and elected representatives of teachers, parents and pupils – had further decided that a two-day school theatre workshop “Mein Körper gehört mir” (“My body is mine”) should be organised at regular intervals as a mandatory school event for children in the third and fourth years, comprising the age group between seven and nine, for the purpose of raising awareness of the problem of sexual abuse of children by strangers or family members with a view to its prevention. The subject of prevention of sexual abuse is part of the official curriculum in the Federal Land of North Rhine-Westphalia and the said theatre workshop is run at numerous schools in the Land. In the course of role play, children are presented with different situations in which sexual abuse might occur and are taught that they may resist behaviour that makes them feel uncomfortable and how to report such behaviour to a person of trust if need be. Parents were informed of the content and purpose of the workshop prior to its implementation in 2007. Two-day workshop modules took place on 18 and 25 January and on 7 and 14 February 2007, as well as during school terms in subsequent years. In addition, it is a school tradition at the Salzkotten primary school to organise an annual carnival celebration for pupils called the “Lütke Fastnacht”. By a decision of the school conference of 23 October 2006, the celebrations for the year 2007 were fixed for 15 February 2007 and parents were informed accordingly. Attendance at the celebrations is compulsory until the official end of morning school lessons. Children are free to dress up and wear costumes during the celebrations and to participate in a carnival procession that is organised in the school yard following compulsory school hours. Since 2006 the school has offered swimming classes or exercise in the gym as an alternative activity for children who do not wish to attend the compulsory school carnival celebrations in the morning. In spring 2005 David Dojan and Elly Fröhlich attended the fourth year of the Salzkotten public primary school. By letter dated 31 May 2005, the parents of the children who attended the fourth year were informed that six sexual education lessons were to be held as from 1 June 2005 dealing with subjects such as procreation, pregnancy and child birth. They were further informed that parents had the opportunity to look at the book to be used for these lessons as from the following school day – that is, on 1 June 2005. After having looked at the book, the Dojan and Fröhlich parents, together with other parents belonging to the Christian Evangelical Baptist Church and whose children attended the same school, requested that their children be exempted from sex education classes in the period from 1 to 17 June 2005. They asserted that their children had been raised without the negative influence of the media, had been used to modest and chaste sexual behaviour at home and did thus not have the necessary maturity to receive the envisaged sex education. The parents objected in particular to the book’s content, which in their opinion was partly pornographic and contrary to Christian sexual ethics requiring that sex should be limited to matrimony. In their view, it set forth a liberal, emancipatory image of sexuality which was not consistent with their religious and other moral beliefs and would lead to premature “sexualisation” of the children. The school refused the request on the grounds that, according to the relevant guidelines and the curriculum, attendance at the lessons was mandatory. David Dojan and Elly Fröhlich attended the first two sex education lessons. Following the refusal of a further request to exempt their children from sex education classes, several parents belonging to the Baptist Christian Evangelical Church, including the Dojan and Fröhlich parents, appeared in the school building on 8 June 2005 and prevented their children from attending the next sexual education lesson, against the school principal’s wishes. The principal and class teacher subsequently decided to hold the lessons at irregular intervals and at unannounced hours in order to hinder any obstruction by the parents. Consequently, the parents kept their children off school for the whole week of 13 to 17 June 2005, during which the remaining sexual education lessons were held. Willy and Anna Dojan, as well as Theodor and Lydia Fröhlich, were each fined 75 euros (EUR) for not sending their children to school during the aforementioned period. The Paderborn District Court upheld the fines imposed in the case of the Dojan couple by a judgment of 5 September 2006 and in the case of the Fröhlich couple by a judgment of 13 October 2006, holding that to keep the children off school without having been granted the necessary exemption by the school’s principal had not been justified. In its judgment of 5 September 2006 the court held that the parents’ right to educate their children and their right to freedom of religion was restricted by the State’s mandate to provide for education, which was implemented by means of compulsory schooling. The neutral transmission of knowledge regarding reproduction, contraception and so forth in school did not prevent the parents from conveying their moral values to their children and did not infringe the personal rights of the children. In its judgment of 13 October 2006 the court further specified that the lessons had been held in accordance with the underlying legal provisions and the ensuing guidelines and the curriculum, which had been based on current scientific and educational standards. The same was true for the teaching materials used, which had delicately introduced the subject of sexuality and childbirth to the reader and which had helped to counteract any possible sense of shame. Sexual education for the concerned age group was necessary with a view to enabling children to deal critically with influences from the society, instead of avoiding them and being isolated. The court specified that in any event the applicants had not been entitled to prevent their children from attending mandatory lessons but could have used legal means to obtain an exemption for the children from the lessons at issue by, for instance, lodging a request for interim measures with the competent administrative courts. The Hamm Court of Appeal dismissed appeals on points of law subsequently brought against the above judgments by a decision of 26 February 2007 with respect to the Dojan couple and by a decision of 26 June 2007 with respect to the Fröhlich couple. The Court of Appeal found that it was established case-law that compulsory schooling constituted an admissible restriction of parents’ rights to freedom of religion and to educate their children. In its decision of 26 June 2007 the Court of Appeal stressed in addition that the State’s mandate to provide education was not limited to the transmission of knowledge but also aimed at educating responsible and emancipated citizens capable of participating in the democratic processes of a pluralistic society with a view, in particular, to integrating minorities and avoiding the formation of religiously or ideologically motivated “parallel societies”. On 12 June and 10 October 2007 respectively the Federal Constitutional Court refused to admit the related constitutional complaints without providing reasons. On 18 and 25 January 2007 Willi and Anna Dojan also kept one of their daughters, who was born in 1997, off school, as the theatre workshop “My body is mine” was running on those days. They also prevented her from attending accompanying sexual education classes in February 2007. They argued that, while they were not opposed to sexual education in school in general, they regarded the particular curriculum used as being harmful to the moral development of their daughter. They were fined EUR 120 each. The Paderborn District Court upheld the fines by a judgment of 27 May 2008. It held that the transmission of knowledge in the field of sexual violence and abuse with a view to providing children with tools to find help in difficult situations also fell within the educational mandate of the State and that the religious motives cited by the parents did not constitute sufficient justification to prevent the child’s school attendance. It further found that the fine of EUR 120 had been justified in view of the previous conviction of the couple by the court’s judgment of 5 September 2006. The Hamm Court of Appeal dismissed an appeal on points of law brought by the couple by a decision of 26 August 2008. On 10 November 2008 the Federal Constitutional Court refused to admit their subsequent constitutional complaint without providing reasons. On 7 and 14 February 2007 Eduard and Rita Wiens prevented one of their children, and Heinrich and Irene Wiens prevented three of their children, who would have been in the envisaged age group, from attending the school theatre workshop “My body is mine”. They stated that it was incompatible with their religious convictions to make a child’s own feelings and will the basis of his or her sexual behaviour, as this would encourage them to act according to their sexual desire like an adult, lose their sense of shame and engage in sexual acts with adults. The biblical doctrine of chastity, limiting sexuality to matrimony, constituted sufficient protection against sexual abuse and there was no scientific proof that the theatre workshop had a preventive effect in this respect. On 15 February 2007, each of Eduard and Rita Wiens and Artur and Anna Wiens further prevented two of their respective children from attending the school carnival celebrations on the grounds that they were inconsistent with their religious and moral beliefs and the religious education they provided to their children. They stated that, in their opinion, the “Lütke Fastnacht” carnival was a Catholic festivity which was directed by carnal desire and accompanied by immoral and uninhibited behaviour. They claimed that they had not been aware that their children would have had the alternative opportunity to attend swimming lessons and that they had not sent their children to school in order that the children not be exposed to the carnival celebrations in the classroom or the gym. Compulsory attendance at such an event constituted a violation of their freedom of conscience and religion, as well as their right to educate their children. Each of Eduard, Rita, Heinrich and Irene Wiens were fined EUR 80 and Artur and Anna Wiens were both fined EUR 40 by the school authorities for not sending their children to the mandatory school events without having obtained prior exemption from the school principal. The Paderborn District Court upheld the fines by separate judgments of 11 June 2008 in respect of each of the three couples. Concerning the school theatre workshop, it found that the parents’ constitutionally guaranteed right to educate their children in accordance with their religious and moral beliefs and their children’s right to freely determine their attitude towards sexual matters were on an equal footing with – and restricted by – the State’s mandate to provide for school education. While the State could pursue its own educational goals, it had to be neutral and tolerant towards the parents’ views and refrain from systematic political, ideological or moral manipulation. As regards sexual education in school, the school authorities had had to take into account the children’s natural sense of shame and had been required to consider the parents’ related moral and religious beliefs. The court was of the opinion that the school theatre workshop in the case at hand had been solely aimed at raising awareness regarding the subject of sexual abuse, which was undeniably a matter where there was a need for action by the State in order to protect children at an early stage. The school event had not promoted or rejected specific sexual behaviour and had not put into question any sexual doctrine based on the applicants’ religious beliefs. As regards the carnival celebrations, the court found that, as they had not been accompanied by any religious activities and their sole purpose had been that the pupils could celebrate together until the end of morning lessons, the State’s duty of neutrality and tolerance had been observed. Furthermore, the children had had the opportunity to attend alternative events and their parents must have been aware of that alternative, which had also showed that the school authorities had tried to accommodate the religious and moral beliefs of the several children belonging to the Baptist faith in the local primary school to the extent possible, bearing in mind the proper functioning of the school system. The Hamm Court of Appeal dismissed appeals on points of law lodged by each of the couples. It did so by decisions of 5 March 2009 with respect to Eduard and Rita Wiens and Artur and Anna Wiens and by two decisions of 31 March 2009 it dismissed related complaints by the two couples of a violation of their right to be heard. By a decision of 16 July 2009 the Hamm Court of Appeal dismissed the appeal on points of law lodged by Heinrich and Irene Wiens against the District Court’s judgment of 11 June 2008. The Court of Appeal’s decision was served on their counsel on 10 August 2009. On 21 July 2009 the Federal Constitutional Court, by a reasoned decision, refused to admit a constitutional complaint lodged by Eduard and Rita Wiens against the above-mentioned decisions rendered in their respect. The Federal Constitutional Court reiterated that the constitutionally guaranteed right to freedom of religion in conjunction with the right of parents to care for and educate their children comprised the parents’ right to impart their religious and moral beliefs to their children and protect them from diverging opinions. However, the Constitution also called on the State to provide school education, a mandate that was implemented by means of compulsory schooling, which therefore constituted an admissible restriction of the parents’ right to educate their children. While the State had the right to pursue its own educational goals, it was nevertheless under an obligation to act in a neutral and tolerant manner vis-à-vis the educational views of parents. The State had to refrain from measures aiming at systematic manipulation in respect of specific political or ideological concepts and from identifying itself with a particular belief or ideology in order not to jeopardise religious peace in society. The Federal Constitutional Court found that the decisions of the domestic courts in the case at hand had complied with these principles. The District Court had correctly assessed that the school theatre workshop, raising the children’s awareness of possible sexual abuse and presenting ways of preventing it, had not infringed the school authorities’ obligation of neutrality. The workshop would not have put into question the parents’ sexual education based on their religious convictions, as the children would not have been influenced to approve of or reject specific sexual behaviour. The applicants’ allegations that the theatre workshop promoted “free sexuality” for children or constituted grooming of the children for paedophilia had neither been supported by the facts as established by the lower courts nor by the content of the teaching materials used for the theatre workshop. In the light of these considerations, there was nothing to establish that the lower courts had misjudged the scope of the parents’ right to freedom of religion and to educate their children according to their religious and moral beliefs. The Federal Constitutional Court further held that the District Court’s finding that the “Lütke Fastnacht” carnival event had not infringed the State’s obligation of neutrality was unobjectionable, taking into account that the event had not been connected with religious acts and that the children had been under no obligation to dress up or wear costumes or actively participate in the celebrations. The same was true for the District Court’s finding that the applicants’ right to freedom of religion and their right to educate their children had not required that the school authorities prevent the applicants’ children from witnessing the other pupils’ carnival celebrations. Such tension between the religious convictions of a minority and the conflicting traditions of the majority resulting from school attendance were acceptable as a matter of principle. This was even more obvious where, as in the case at hand, the school authorities had attempted to strike a balance between the parents’ constitutional rights and the State’s mandate to provide education by offering alternative events. By a decision of the same date, the Federal Constitutional Court also refused to admit a constitutional complaint lodged by Artur and Anna Wiens without providing reasons. The decisions were not posted to the claimants before 5 August 2009. In view of the Federal Constitutional Court’s decisions with respect to their relatives, Heinrich and Irene Wiens refrained from lodging a constitutional complaint. It appears that on subsequent occasions in following school terms, the three Wiens couples continued to prevent those of their children who were subject to one or the other of the aforementioned compulsory sexual education modules or school events from attending them. The parents were subject to ever increasing fines, which they deemed to be unlawful and refused to pay. As attempts by the domestic authorities to enforce payment were to no avail, the parents were each sentenced to imprisonment in lieu of payment for up to forty-three days. For instance, by separate decisions of the Paderborn District Court of 11 March 2009, Eduard Wiens was sentenced to a fine of EUR 1,090 and Artur Wiens to a fine of EUR 450 for not sending several of their children to compulsory school events on repeated occasions. Following fruitless attempts to enforce payment of such fines, an application by the public prosecutor to impose a prison sentence of forty days with respect to Eduard Wiens and thirty days with respect to Artur Wiens was granted by separate decisions of the Paderborn District Court on 1 March 2010. Eduard Wiens’s subsequent appeal was dismissed by a decision of the Paderborn Regional Court on 13 April 2010. The court held that the applicant’s imprisonment had been lawful and had not been disproportionate. It emphasised that the applicant had initially been fined and that imprisonment had not been a sanction for the administrative offence on which the fine had been based but solely a means to enforce the applicant’s payment obligation. The question of whether the imposition of the underlying fine had been lawful was not the subject of the proceedings regarding the prison sentence. The Regional Court further held that the length of the sentence imposed had been in line with the District Court’s practice and had thus been proportionate. By a decision of 14 April 2010 the Regional Court dismissed an appeal brought by Artur Wiens against the imprisonment order with similar reasoning. However, when comparing the length of the sentence imposed with previous sentences imposed by the District Court for unpaid fines (such as ten days for a fine of EUR 250 and forty days for a fine in the amount of EUR 1,090), the court found that the sentence of thirty days handed down to Mr Wiens had been excessive and reduced it to twenty days. No further court decisions with respect to imprisonment orders relating to other members of the Wiens family were submitted to the Court. However, according to information submitted by the applicants’ counsel, similar sentences were imposed on all of the parents. It appears that Heinrich Wiens served a prison sentence from 26 August to 6 October 2010 and that his wife Irene was sentenced by a decision of the Paderborn District Court on 2 July 2010 to a prison sentence of forty-three days for non-payment of a fine in the amount of EUR 1,090, service of which sentence commenced on an unknown date in February/March 2011. Her request for immediate release from prison lodged with the Court under Rule 39 of the Rules of Court on the grounds that, in particular, the length of her prison sentence had been disproportionate in breach of Article 5 of the Convention and had caused irreparable damage to her family life as protected by Article 8, was rejected by the President of the Fifth Section on 9 March 2011. It further appears that similar prison sentences imposed on Anna Wiens and Rita Wiens were adjourned because of Anna Wiens being pregnant and Rita Wiens nursing a newborn child. Pursuant to Article 4 of the German Basic Law (Grundgesetz), freedom of religion shall be inviolable and its undisturbed practice shall be guaranteed. While Article 6 (2) of the Basic Law acknowledges that the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them, its Article 7 stipulates that the entire school system shall be under the supervision of the state. Paragraph 4 of Article 7 guarantees, inter alia, the right to establish private schools. Private schools that serve as alternatives to state schools shall require the approval of the state and shall be subject to the laws of the Länder. Paragraph 5 states that private primary schools shall be approved only if the educational authority finds that the school serves a special educational interest or if, on the application of parents or guardians, it is to be established as a denominational or interdenominational school or as a school based on a particular philosophy and no state primary school of that type exists in the municipality. Pursuant to section 33 of the Schools Act of the Federal Land of North Rhine-Westphalia (Schulgesetz NRW), sexual education in school complements sexual education by a child’s parents. Its aim is to provide pupils with knowledge of biological, ethical, social and cultural aspects of sexuality according to their age and maturity in order to enable them to develop their own moral views and an independent approach towards their own sexuality. Sexual education should encourage tolerance between human beings irrespective of their sexual orientation and identity. Paragraph 2 of the said provision stipulates that parents have to be informed in due course of the purpose and content of school sexual education. Primary schooling in Germany comprises the first to fourth year. Pursuant to the Schools Act and the Compulsory Schooling Act of the Federal Land of North Rhine-Westphalia (Schulpflichtgesetz NRW), compulsory primary schooling starts at the age of six and applies to all children having their residence in North Rhine-Westphalia. Children are obliged to regularly attend classes and all other mandatory school events and parents are responsible for ensuring regular attendance by their children. At the request of a child’s parents, a school’s principal may exempt pupils from certain classes or school events in the event that important reasons justify such exemption (sections 34(1), 35(1), 41(1) and 43 (1) and (3) of the Schools Act and sections 1(1), 3(1), 16(2), 17 and 20(1) and (2) of the Compulsory Schooling Act). Failure by the parents to ensure their children’s attendance constitutes an administrative offence which may result in the imposition of a fine (section 126 of the Schools Act). According to section 17 of the Administrative Offences Act, fines may range from EUR 5 to 1,000 depending on the nature of the offence. Section 20 of the said Act specifies that in the event of several fines each of them shall be determined separately. Pursuant to section 96 of the same Act, the competent court may order arrest to enforce the payment of a fine in the event that: (i) the amount has not been paid within two weeks following entry into force of the decision by which it was imposed; (ii) it has not been established that the debtor is unable to pay; and provided that (iii) the debtor has been informed of the possibility of his arrest. The duration of the arrest in lieu of payment may not exceed six weeks and in the event of several fines imposed by one decision it may not exceed a period of three months. An arrest may not be repeated in respect of the same fine.