Statements of facts and relevant Polish law
The main issue put in front of the Court was the Polish legislation (prior and after adopting the Constitution of the Republic of Poland on 2 April of 1997) regarding the freedom of religion and question of discrimination on this ground. Firstly, the law supporting the guarantees for free examination of the religious beliefs and the freedom of conscience, is the Freedom of Religion and Conscience Act of 17 May of 1989. This act is entitling a person to choose the religion upon his desire and manifest his beliefs alone or with others in public as well as in private, also providing a right not to disclose his religious beliefs. Secondly, on 3 and 24 August of 1990 the Minister of Education of the Republic of Poland published two instructions which became the start point for the instructions of Roman Catholicism at the Public schools Poland and they also were setting a rule of making a declaration by the parents of the pupils regarding their desire of attending the religious classes by their children.
Mentioned ordinances became a reason for the Ombudsman of Poland to apply to the Constitutional Court asserting that the ordinances were in breach with the “Freedom of Religion and Conscience Act” of 1989, which was providing a right not to disclose the religious beliefs, but in the Decision of 30 January of 1991 the Constitutional Court upheld that disputed acts were in full compliance with the Constitution.
Furthermore, in 1991 the Parliament of the Republic of Poland adopted a Law on education (Educational Act) which was providing a possibility of including the religious instruction in the schedule of the schools upon request of the parents of the minors or the pupils who had reached the full age. In 1992 for implementation of the mentioned Law the Minister of Education of the Republic of Poland launched the ordinance, replacing the previous instructions and setting a rule of organizing the religious and other optional classes, which had an optional character along with classes in ethics at the public schools. Besides the article 9 of the ordinance was implying the rule of setting a mark in the optional subjects of study, and also setting that the mark in the chosen subject could not influence the grading up to the next level of the pupil.
This ordinance became the subject for applying to the Constitutional Court by the Ombudsman stating it’s opposing character to the Constitution in force and the “Freedom of Religion and Conscience Act”, asserting that putting a mark in chosen subject between ethics and religion in school reports was unacceptable, because of the public character of the document issued by the state and the teaching of the religion was the subject of the Church and it was in breach of the Constitutional principle of Separating the Church and the State. And one more time putting forward the issue of the obligation of parents regarding their declaration about their desire for their children for attending or not, the religious classes at school. In the decision of the 20 April of 1993 regarding the issues put forward by the Ombudsman the Constitutional court stated that the inclusion of the religious classes at school is not infringing the Constitutional principle of the separating of the State and the church. The Insertion of marks in the optional subjects the Constitutional Court found to be in compliance with the “Educational Act” of 1991 explaining that according to the mentioned act it was obligatory to put marks in the School Reports.
On 2 April of 1997 the Constitution of the Republic of Poland was adopted, providing the principles of impartiality of the Public Officials regarding the issues of the religious and philosophical convictions, providing the parents with a right of bringing up their children according to their religious beliefs, imposing a possibility of teaching the religion of the church or any other recognized religious organization, establishing the limitation of the
public expression only in circumstances provided by law or in the interests of public security, and most importantly the prohibition of compelling of disclosure of the religious beliefs of a person by the organs of public authority.
On 13 July of 2007 the Minister of the Education published the ordinance on “Marking the Pupils Work”, which was implying the marks obtained in the subjects which had an optional character, to have the influence on the “average mark” when calculating. This ordinance became the subject of discussion for the Constitutional Court of the Poland. However, the constitutional court found no breach of any provisions provided by the Constitution regarding the freedom of religion and conscience, by stating that the record of the marks in religion was a result of religious education at the Public schools, and besides by the legislation in force the pupils had a choice between the optional classes and therefore there was no violation of any provision neither of the Constitution or the Educational Act. As for the inclusion of the marks obtained in the subjects which the parents of the minor pupils were entitled to choose upon their desire the Constitutional court upheld its’ decision made on 20 April of 1993 by stating that this issue had already been examined by the Court and during the examination no breach was found, therefore examination regarding this issue was unnecessary.
The applicants claimed that the right acknowledged by Polish legislation to choose between the religious and ethic classes had a theoretical character and realization of such right was very difficult if not impossible. The impossibility to realize such right according to the applicants was resulted by the fact that, the ordinance of the Minister of the Education was setting that, in order to organize optional class other than Religious Instruction the will of minimal number of persons, at least 7 pupils had to exist, and in the country like Poland where the biggest part of the society is Roman Catholic and the level of religiosity is high at the public schools almost no optional classes other than religious instruction were possible to attend, what was resulting with an empty space in the School Reports “Religion/Ethics” graph.
In the court proceedings as a third party intervener was involved the Helsinki Foundation for Human Rights. By the statement of the third party, the statistical data showed that in most of the public schools in Poland, about 85% (85,57 schools) only the religious classes were available to attend as an optional and at the same time the ethic classes were taught only in 334 schools, what is the 1,03% of the whole number. Besides, by the submission of the third party, the possibility to attend the ethic classes had become only virtually possible, because the ordinance of the 13 July of 2007 of the Minister of the Education was mainly aimed at the rights of the Roman catholic religion followers, because most of the provisions of the mentioned ordinance were regulating the teaching of the religion at the public schools.
As for the issue of the marks in the optional subjects, the third party mentioned that, in a situation, when the only optional class at the most schools of Poland was the religious instruction, other pupils who or whose parents did not desire to attend such class had two options to have no mark in religion or just a straight line in the appropriate graph of the school reports, what was underlining their non attendance of the class that was organized in the most schools of Poland and in this situation the cultural aspect of the country had to be taken under consideration what was creating the ground for the discrimination. Regarding this issue the third party also stated that when putting a mark or a straight line or just leaving the empty space was disclosing ones religious belonging indirectly, and the amendment of the ordinance which was giving to the optional class importance in the question of grading up a pupil or not would make the situation even more difficult.
Judgement of the European Court of Human Rights
The court on the mentioned issues stated that, in a democratic society many aspects should be foreseen by the state, for example when in the country several religions are coexisting there should be some restrictions put on the right to freedom of thought, religion and conscience in order to reconcile the right of the various groups of the society. By the approach of the court there was violation of the article 14 of the convention in conjunction with article 9 in regard of putting marks in the school because reports were official documents, and by this the religious belonging or beliefs of a person were undisclosed and under this reason it found the application admissible
The court also stated that the article 14 of the convention was putting negative and positive obligation to the state regarding the freedom of thought religion and conscience, at one point to give a possibility to a person to express his beliefs and on the other point not to oblige anyone to undisclosed his beliefs of convictions directly or indirectly. By the approach of the court there was violation of the article 14 of the convention in conjunction with article 9 in regard of putting marks in the school because reports were official documents, and by this the religious belonging or beliefs of a person were undisclosed and under this reason it found the application admissible