In the case of Kjeldsen, Busk Madsen and Pedersen,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms (hereinafter referred to as "the

Convention") and Rules 21 and 22 of the Rules of Court, as a Chamber

composed of the following judges:

Mr. G. BALLADORE PALLIERI, President,

Mr. A. VERDROSS,

Mr. M. ZEKIA,

Mrs. H. PEDERSEN,

Mr. S. PETREN,

Mr. R. RYSSDAL,

Mr. D. EVRIGENIS,

and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy

Registrar,

Having deliberated in private on 3 and 4 June and then on

5 November 1976,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case of Kjeldsen, Busk Madsen and Pedersen was referred to the

Court by the European Commission of Human Rights (hereinafter referred

to as "the Commission"). The case originated in three applications

(nos. 5095/71, 5920/72 and 5926/72) against the Kingdom of Denmark

lodged with the Commission in 1971 and 1972 by Viking and Annemarie

Kjeldsen, Arne and Inger Busk Madsen, and Hans and Ellen Pedersen, all

parents of Danish nationality; the joinder of the said applications

was ordered by the Commission on 19 July 1973.

2. The Commission's request, to which was attached the report

provided for under Article 31 (art. 31) of the Convention, was filed

with the registry of the Court on 24 July 1975, within the period of

three months laid down by Articles 32 para. 1 and 47 (art. 32-1, art. 47).

The request referred to Articles 44 and 48 (art. 44, art. 48) and to

the declaration made on 7 April 1972 by the Kingdom of Denmark

recognising the compulsory jurisdiction of the Court (Article 46)

(art. 46). The purpose of the Commission's request is to obtain a

decision from the Court as to whether or not the facts of the case

disclose a breach by the respondent State of its obligations under

Article 2 of the Protocol (P1-2) of 20 March 1952 (hereinafter

referred to as "Protocol No. 1"); it also makes reference to

Articles 8, 9 and 14 (art. 8, art. 9, art. 14) of the Convention.

3. On 26 July 1975, in the presence of the Registrar, the President

of the Court drew by lot the names of five of the seven judges called

upon to sit as members of the Chamber; Mrs. H. Pedersen, the elected

judge of Danish nationality, and Mr. G. Balladore Pallieri, the

President of the Court, were ex officio members under Article 43

(art. 43) of the Convention and Rule 21 para. 3 (b) of the Rules of Court

respectively. One of the members of the Chamber, namely

Mr. J. Cremona, was subsequently prevented from taking part in the

consideration of the case; he was replaced by the first substitute

judge, Mr. M. Zekia.

Mr. Balladore Pallieri assumed the office of President of the Chamber

in accordance with Rule 21 para. 5.

4. The President of the Chamber ascertained, through the Registrar,

the views of the Agent of the Government of the Kingdom of Denmark

(hereinafter referred to as "the Government") and of the delegates of

the Commission regarding the procedure to be followed. By an Order of

8 September 1975, the President of the Chamber decided that the

Government should file a memorial within a time-limit expiring on

1 December 1975 and that the delegates of the Commission should be

entitled to file a memorial in reply within two months of receipt of

the Government's memorial.

5. On 12 November 1975, the Agent of the Government advised the

Registrar of his intention to contest the jurisdiction of the Court in

the present case.

In accordance with the leave granted by the President of the Chamber,

the Government's memorial, filed with the registry on

29 November 1975, dealt exclusively with this preliminary question.

The Government referred therein to the declaration whereby, on

7 April 1972, they recognised "the compulsory jurisdiction" of the

Court "ipso facto and without special agreement, in respect of any

other Contracting Party to [the Convention] accepting the same

obligations, subject to reciprocity". In conclusion, they submitted:

(i) that the said declaration "is expressly limited to cases brought

before the Court by another declarant State";

(ii) "that such limitation of the scope of declarations made under

Article 46 (art. 46) is not excluded either by the provision or by the

structure of the Convention";

(iii) "that in any event" the Government "cannot be held to be subject

to the compulsory jurisdiction of the Court beyond the express

wording" of their declaration.

Emphasising in addition that they had not accepted ad hoc the

jurisdiction of the Court as regards the instant case (Article 48

of the Convention) (art. 48), the Government invited the Court to find

that it had "no jurisdiction to deal with the merits of the present

cases".

6. By a message received at the registry on 16 January 1976, the

Agent of the Government informed the Registrar that, following a

debate the previous day in the Danish Parliament, his Government had

"decided to withdraw with immediate effect [their] preliminary

objection, thus accepting ad hoc the jurisdiction of the Court".

7. At a meeting in Strasbourg on 20 January 1976, the Chamber took

cognisance of the said message and instructed the President to advise

the Government that formal note thereof had been taken; this task the

President discharged by means of an Order of 28 January.

The Chamber noted that its jurisdiction was henceforth established for

the case at issue, whether on the basis of the special consent

expressed in that message or by virtue of the general declaration made

by the Kingdom of Denmark on 7 April 1972 under Article 46 (art. 46)

of the Convention, as the delegates of the Commission contended in a

memorial filed with the registry on 26 January 1976.

8. By the same Order of 28 January 1976, the President of the Chamber

settled the written procedure as regards the merits of the case.

Having consulted, through the Registrar, the Agent of the Government

and the delegates of the Commission in this connection, he decided

that the Government should file a memorial not later than

10 March 1976 and that the delegates of the Commission should be

entitled to file a memorial in reply within two months of receipt of

the Government's memorial.

The Government's memorial was received at the registry on 11 March,

that of the delegates on 12 May 1976.

9. On 20 March 1976, the President of the Chamber instructed the

Registrar to invite the Commission to produce certain documents, which

were communicated to the registry on 26 March.

10. After consulting, through the Registrar, the Agent of the

Government and the delegates of the Commission, the President of the

Chamber decided by an Order of 19 May 1976 that the oral hearings

should open on 1 June 1976.

11. In a telegram of 13 May 1976 addressed to the Commission's

principal delegate, Mr. and Mrs. Kjeldsen declared that they withdrew

their application. The Secretary to the Commission notified the

Registrar of this on 21 May; he specified at the same time that,

having considered the matter, the Commission had decided to request

the Court not to strike the application out of its list.

Mr. and Mrs. Kjeldsen in addition wrote directly to the Registrar on

17 and 27 May 1976. In their letters, which were drafted in somewhat

violent terms, they gave as the explanation for their "discontinuance"

the far-reaching divergences between their own arguments and those of

the applicants Busk Madsen and Pedersen. As they objected to the

Commission's having ordered the joinder of the three applications,

they requested the Court, in the alternative, to postpone the hearings

until a later date and to examine their case separately.

12. On 24 and 31 May and then on 1 June 1976, the Government

communicated several documents to the Court.

13. The oral hearings were held in public at the Human Rights

Building, Strasbourg, on 1 and 2 June 1976.

There appeared before the Court:

- for the Government:

- Mr. A. SPANG-HANSSEN, Barrister at the Supreme Court of Denmark,

Agent;

- Mr. J. MUNCK-HANSEN, Head of Division at the Ministry of Education,

- Mr. T. RECHNAGEL, Head of Division at the Legal Department of the

Ministry of Foreign Affairs,

- Mr. N. EILSCHOU-HOLM, Head of Division at the Ministry of Justice,

Advisers;

- for the Commission:

- Mr. F. WELTER, Principal Delegate,

- Mr. J. FROWEIN, Delegate.

The Court heard addresses by Mr. Welter and Mr. Frowein for the

Commission and by Mr. Spang-Hanssen for the Government, as well as

their replies to questions put by the Court.

AS TO THE FACTS

14. The applicants, who are parents of Danish nationality, reside in

Denmark. Mr. Viking Kjeldsen, a galvaniser, and his wife Annemarie, a

schoolteacher, live in Varde; Mr. Arne Busk Madsen, a clergyman, and

his wife Inger, a schoolteacher, come from Ĺbenrĺ; Mr. Hans Pedersen,

who is a clergyman, and Mrs. Ellen Pedersen have their home in Ĺlborg.

All three couples, having children of school age, object to

integrated, and hence compulsory, sex education as introduced into

State primary schools in Denmark by Act No. 235 of 27 May 1970,

amending the State Schools Act (Lov om aendring af lov om folkeskolen,

hereinafter referred to as "the 1970 Act").

Primary education in general

15. According to Article 76 of the Danish Constitution, all children

have the right to free education in the State primary schools

(folkeskolen), although parents are not obliged to enrol them there

and may send them to a private school or instruct them at home.

During the school year 1970/71, a total of 716,665 pupils were

attending 2,471 schools, of which 277 were private with 43,689 pupils.

Some parents chose to educate their children at home.

16. At the time of the facts at issue, primary education in State

schools was governed by the State Schools Act (Lov om folkeskolen)

(a consolidated version of which was set out in Executive Order

No. 279 of 8 July 1966), which had been amended on various occasions

between 1966 and 1970.

Primary education lasted for nine years; a tenth year, as well as a

pre-school year for children of five to six years, were voluntary.

The subjects taught in the first four years were Danish, writing,

arithmetic, knowledge of Christianity (kristendomskundskab), history,

geography, biology, physical training, music, creative art and

needlework. In the fifth and sixth years, English and woodwork were

added, and in the seventh year German, mathematics, natural sciences

and domestic science. As from the eighth year the pupils were, to

some extent, allowed to choose from these courses the subjects they

preferred.

Under the Act, the Minister of Education determined the objectives of

schooling and the local school authorities fixed the contents of the

curriculum and the number of lessons. There were, however, two

exceptions to this rule. Firstly, religious instruction was to be in

conformity with the Evangelical Lutheran doctrine of the National

Church, but children might be exempted therefrom. Secondly, the

legislator had directed schools to include in their curricula, often

in conjunction with traditional subjects, certain new topics such as

road safety, civics, hygiene and sex education.

17. The administration of State schools in Denmark is largely

decentralised. These institutions are run by the municipal council,

the highest education authority in each of the some 275 municipalities

in that country, as well as by a school commission and a school board.

The school commission (skolekommissionen) is as a general rule

composed of eleven members of whom six are elected by the municipal

council and five by the parents. The commission, in consultation with

the teachers' council and within the limits laid down by law, prepares

the curriculum for the schools within its district. The curriculum

must be approved by the municipal council. To assist these bodies in

the performance of their tasks, the Minister of Education issues

guidelines prepared by the State Schools' Curriculum Committee

(hereinafter referred to as "the Curriculum Committee"), set up

in 1958.

Each State school has a school board (skolenaevn) which comprises

three or five members; one member is chosen by the municipal council,

the two or four others by the parents. The board supervises the

school and organises co-operation between school and parents. It

decides, upon recommendation from the teachers' council, what teaching

aids and in particular what books are to be used by the school and it

also determines the distribution of lessons among the teachers.

18. Primary education at private schools or at home must not fall

below the standards laid down for State schools; it must cover the

same compulsory subjects and be of comparable quality. While a school

may be established without any advance approval, it is subsequently

supervised by the school commissions in order to ensure, in

particular, that adequate instruction is given in Danish, writing and

arithmetic. The same applies to education given in the home; if the

school commission finds twice in succession that such teaching is

inadequate, the parents are required to send the child to a State or

private school.

The State supports private schools provided that they have not less

than twenty pupils in all and not less than ten pupils per class. The

State subsidises 85 per cent of their running costs (principal's and

teachers' salaries, maintenance of buildings, heating, electricity,

water, cleaning, insurance, etc.). In addition, private schools may

be granted government loans on favourable terms for construction and

improvement of buildings. As a result, parents who enrol their

children at a private school do not in general have to bear school

fees in excess of 1,200 Kroner per child per annum; during the

1973/1974 school year their average expenditure scarcely exceeded

1,050 Kroner. The Danish Parliament voted in May 1976 in favour of a

proposal which would oblige municipalities to bear a large proportion

of the cost of transport for children attending private schools.

The statistics on private schools show that, in the school year

1973/74, there were about seventy "free" schools; one hundred and one

private grammar schools without special religious background;

twenty-five Catholic schools; nineteen German minority schools; ten

schools for members of other religious societies; eight "Christian

free" schools; and some thirty-five other schools.

The applicants claim that there are insufficient private schools and

that their pupils frequently have to travel long distances to attend

them; moreover, parents wishing to send their children to a private

school in Copenhagen have to enter them on waiting lists at least

three years in advance.

Sex education

19. In Denmark, sex education in State schools has been a topic of

discussion for thirty-five years. As early as 1945, sex education was

introduced in the State schools of Copenhagen and several institutions

outside the capital copied this example. Nevertheless, the Minister

of Education spoke against compulsory sex education when the question

was raised in 1958.

In 1960, the Curriculum Committee published a "Guide to teaching in

State schools" which distinguished between instruction on the

reproduction of man and sex education proper. The Committee

recommended that the former be integrated in the biology syllabus

while the latter should remain optional for children and teachers and

be provided by medical staff. The Committee also advised that

guidelines for schools be drawn up on the contents of, and the

terminology to be used in, sex education.

In a Circular of 8 April 1960, the Minister of Education adopted the

Committee's conclusions: as from the school year 1960/61 reproduction

of man became a compulsory part of biology lessons whereas an official

guide issued by the Ministry, dating from September 1961, specified

that only those children whose parents had given their express consent

should receive sex education proper.

20. The Danish Government, anxious to reduce the disconcerting

increase in the frequency of unwanted pregnancies, instructed a

committee in 1961 to examine the problem of sex education

(Seksualoplysningsudvalget). The setting up of such a committee had

been urged, among others, by the National Council of Danish Women

(Danske Kvinders Nationalraad) under the chairmanship of

Mrs. Else-Merete Ross, a Member of Parliament, and by the Board of the

Mothers' Aid Institutions (Mřdrehjaelpsinstitutionernes Bestyrelse).

Every year the latter bodies received applications for assistance from

about 6,000 young unmarried mothers of whom half were below twenty

years of age and a quarter below seventeen. In addition, many

children, often of very young parents, were born within the first nine

months after marriage. Legal abortions, for their part, numbered

about 4,000 every year and, according to expert opinions, illegal

abortions about 15,000 whereas the annual birth rate was hardly more

than 70,000.

21. In 1968, after a thorough examination of the problem, the

above-mentioned committee, which was composed of doctors,

educationalists, lawyers, theologians and government experts,

submitted a report (No. 484) entitled "Sex Education in State Schools"

(Seksualundervisning i Folkeskolen m.v., Betaenkning Nr. 484).

Modelling itself on the system that had been in force in Sweden for

some years, the committee recommended in its report that sex education

be integrated into compulsory subjects on the curriculum of State

schools. However, there should be no obligation for teachers to take

part in this teaching.

The report was based on the idea that it was essential for sexual

instruction to be adapted to the children's different degrees of

maturity and to be taught in the natural context of other subjects,

for instance when questions by the children presented the appropriate

opportunity. This method appeared to the committee particularly

suited to prevent the subject from becoming delicate or speculative.

The report emphasised that instruction in the matter should take the

form of discussions and informal talks between teachers and pupils.

Finally it gave an outline of the contents of sex education and

recommended the drawing up of a new guide for State schools.

22. In March 1970, the Minister of Education tabled a Bill before

Parliament to amend the State Schools Act. The Bill provided, inter

alia, that sex education should become obligatory and an integrated

part of general teaching in State primary schools. In this respect,

the Bill was based on the recommendations of the committee on sex

education, with one exception: following a declaration from the

National Teachers' Association, it did not grant teachers a general

right of exemption from participation in such instruction.

The Bill had received the support not only of this Association but

also of the National Association of School and Society representing on

the national level education committees, school boards and parents'

associations, and of the National Association of Municipal Councils.

Section 1 para. 25 of the 1970 Act, which was passed unanimously by

Parliament and became law on 27 May 1970, added "library organisation

and sex education" to the list of subjects to be taught, set out in

Section 17 para. 6 of the State Schools Act. Accordingly the latter text

henceforth read as follows (Bekendtgřrelse No. 300 of 12 June 1970):

"In addition to the foregoing, the following shall also apply to

teaching in primary schools:

road safety, library organisation and sex education shall form an

integral part of teaching in the manner specified by the Minister of

Education.

..."

The Act entered into force on 1 August 1970. As early as 25 June, a

Circular from the Minister of Education (Cirkulaere om aendring af

folkeskoleloven) had advised municipal councils, school commissions,

school boards, teachers' councils and headmasters of schools outside

Copenhagen "that further texts, accompanied by new teaching

instructions, on sex education would be issued". The Circular

specified that "henceforth, parents (would) still have the possibility

of exempting their children from such education and teachers that of

not dispensing it".

23. After the passing of the 1970 Act, the Minister of Education

requested the Curriculum Committee to prepare a new guide to sex

education in State schools intended to replace the 1961 guide

(paragraph 19 above). The new guide (Vejledning om seksualoplysning i

folkeskolen, hereinafter referred to as "the Guide") was completed in

April 1971; it set out the objectives of sex education as well as

certain general principles that ought to govern it, and suggested

detailed curricula for the various classes.

24. On the basis of the recommendations in the Guide, the Minister of

Education laid down in Executive Order No. 274 of 8 June 1971

(Bekendtgřrelse om seksualoplysning i folkeskolen) the rules of which

he had given notice in his Circular of 25 June 1970.

The Executive Order - which applied to primary education and the first

level of secondary education in State schools outside Copenhagen - was

worded as follows:

"Section 1 (1) The objective of sex education shall be to impart to

the pupils knowledge which could:

(a) help them avoid such insecurity and apprehension as would

otherwise cause them problems;

(b) promote understanding of a connection between sex life, love life

and general human relationships;

(c) enable the individual pupil independently to arrive at standpoints

which harmonise best with his or her personality;

(d) stress the importance of responsibility and consideration in

matters of sex.

(2) Sex education at all levels shall form part of the instruction

given, in the general school subjects, in particular Danish, knowledge

of Christianity, biology (hygiene), history (civics) and domestic

relations. In addition, a general survey of the main topics covered by

sex education may be given in the sixth and ninth school years.

Section 2 (1) The organisation and scope of sex education shall be

laid down in or in accordance with the curriculum. Assistance in this

respect is to be obtained from the Guide issued by the State Schools'

Curriculum Committee. If the special instruction referred to in the

second sentence of Section 1 para. 2 is provided in the sixth and ninth

years, a small number of lessons shall be set aside each year for this

purpose.

(2) Restrictions may not be imposed upon the range of matters dealt

with in accordance with sub-section 1 so as to render impossible the

fulfilment of the purpose of sex education.

(3) The restrictions on the carrying out of sex education in schools,

as indicated in Part 4 of the Guide, shall apply regardless of the

provisions of the curriculum.

Section 3 (1) Sex education shall be given by the teachers responsible

for giving lessons on the subjects with which it is integrated in the

relevant class and in accordance with the directives of the principal

of the school. If it is not clear from the curriculum which subjects

are linked to the various topics to be taught, the class teachers

shall distribute the work, as far as need be, in accordance with the

recommendation of the teachers' council; this latter opinion must be

approved by the school board pursuant to section 27 para. 5 of the School

Administration Act.

(2) A teacher cannot be compelled against his will to give the special

instruction in the sixth and ninth years referred to in the second

sentence of section 1 para. 2.

Section 4 (1) The present Order shall come into force on

1 August 1971.

(2) At the same time the right of parents to have their children

exempted from sex education given at school shall cease. They may

nevertheless, on application to the principal of the school, have them

exempted from the special instruction referred to in the second

sentence of section 1 para. 2.

(3) ..."

25. A Ministry of Education Circular (Cirkulaere om seksualoplysning

i folkeskolen), also dated 8 June 1971 and sent to the same

authorities as that of 25 June 1970 (paragraph 22 above), gave the

recipients, inter alia, certain particulars on the preparation of

State school curricula in this field. It drew, in particular, their

attention to the fact that "it was for the school commission, after

discussion with the joint council of teachers, to prepare draft

provisions governing sex education to be included in the curricula of

the schools of the municipality". Recalling that these provisions may

take the form of a simple reference to the recommendations in the

Guide, the Circular pointed out that the Guide gave, for the fifth to

tenth year classes, various possibilities as regards the manner and

scope of teaching. Thus, if there were a simple reference to the

Guide, "it is for the institution (teachers' council) to take a

decision in this respect with the agreement of the school board".

26. The objectives set out in the Executive Order of 8 June 1971 were

identical with those of the Guide, except that the latter contains an

addition to the effect that schools must try to develop in pupils

openness with regard to the sexual aspects of human life and to bring

about such openness through an attitude that will make them feel

secure.

27. The principle of integration, provided for in paragraph 2 of

section 1 of the Executive Order, is explained as follows in the

Guide:

"The main purpose of integration is to place sex guidance in a context

where the sexuality of man does not appear as a special phenomenon.

Sexuality is not a purely physical matter ... nor is it a purely

technical matter .... On the other hand it is not of such emotional

impact that it cannot be taken up for objective and sober discussion.

... The topic should therefore form an integral part of the overall

school education ..."

28. As for the definition of the manner and scope of sex education

(section 2 para. 1 of the Executive Order), the Guide indicates the

matters that may be included in the State school curricula.

In the first to fourth years instruction begins with the concept of

the family and then moves on to the difference between the sexes,

conception, birth and development of the child, family planning,

relations with adults whom the children do not know and puberty.

The list of subjects suggested for the fifth to seventh years includes

the sexual organs, puberty, hormones, heredity, sexual activities

(masturbation, intercourse, orgasm), fertilisation, methods of

contraception, venereal diseases, sexual deviations (in particular

homosexuality) and pornography.

The teaching given in the eighth to tenth years returns to the matters

touched on during the previous years but puts the accent on the

ethical, social and family aspects of sexual life. The Guide mentions

sexual ethics and sexual morals; different views on sexual life before

marriage; sexual and marital problems in the light of different

religious and political viewpoints; the role of the sexes; love, sex

and faithfulness in marriage; divorce, etc.

29. The Guide advocates an instruction method centred on informal

talks between teachers and children on the basis of the latter

questions. It emphasises that "the instruction must be so tactful as

not to offend or frighten the child" and that it "must respect each

child's right to adhere to conceptions it has developed itself". To

the extent that the discussion bears on ethical and moral problems of

sexual life, the Guide recommends teachers to adopt an objective

attitude; it specifies:

"The teacher should not identify himself with or dissociate himself

from the conceptions dealt with. However, it does not necessarily

prevent the teacher from showing his personal view. The demand for

objectivity is amplified by the fact that the school accepts children

from all social classes. It must be possible for all parents to

reckon safely on their children not being influenced in a unilateral

direction which may deviate from the opinion of the home. It must be

possible for the parents to trust that the ethical basic points of

view will be presented objectively and soberly."

The Guide also directs teachers not to use vulgar terminology or

erotic photographs, not to enter into discussions of sexual matters

with a single pupil outside the group and not to impart to pupils

information about the technique of sexual intercourse (section 2 para. 3

of the Executive Order).

The applicants claim, however, that in practice vulgar terminology is

used to a very wide extent. They refer to a book by Bent H. Claësson

called "Dreng og Pige, Mand og Kvinde" ("Boy and Girl, Man and Woman")

of which 55,000 copies have been sold in Denmark. According to them

it frequently uses vulgar terminology, explains the technique of

coitus and shows photographs depicting erotic situations.

30. On the subject of relations between school and parents, the Guide

points out, inter alia:

"In order to achieve an interaction between sex education at the

school and at home respectively, it will be expedient to keep parents

acquainted with the manner and scope of the sex education given at

school. Parent class meetings are a good way of establishing this

contact between school and parents. Discussions there will provide

the opportunity for emphasising the objective of sexual instruction at

the school and for making it clear to parents that it is not the

school's intention to take anything away from them but rather ... to

establish co-operation for the benefit of all parties. It can also be

pointed out to parents that the integrated education allows the topic

to be taken up exactly where it arises naturally in the other fields

of instruction and that, generally, this is only practicable if sex

education is compulsory for pupils. ... Besides, through his contacts

with the homes the class teacher will be able to learn enough about

the parents' attitude towards the school, towards their own child and

towards its special problems. During discussions about the sex

education given by the school, sceptical parents will often be led to

realise the justification for co-operation between school and home in

this field as well. Some children may have special requirements or

need special consideration and it will often be the parents of these

children who are difficult to contact. The teacher should be aware of

this fact. When gradually the teacher, homes and children have come to

know each other, a relationship of trust may arise which will make it

possible to begin sex education in a way that is satisfactory to all

parties."

31. The Executive Order No. 313 of 15 June 1972, which came into

force on 1 August 1972, repealed the Executive Order of 8 June 1971.

The new Order reads:

"Section 1

(1) The objective of the sex education provided in Folkeskolen shall

be to impart to the pupils such knowledge of sex life as will enable

them to take care of themselves and show consideration for others in

that respect.

(2) Schools are therefore required, as a minimum, to provide

instruction on the anatomy of the reproductive organs, on conception

and contraception and on venereal diseases to such extent that the

pupils will not later in life land themselves or others in

difficulties solely on account of lack of knowledge. Additional and

more far-reaching goals of instruction may be established within the

framework of the objective set out in sub-section (1) above.

(3) Sex education shall start not later than in the third school year;

it shall form part of the instruction given in the general school

subjects, in particular Danish, knowledge of Christianity, biology

(hygiene), history (civics) and domestic relations. In addition, a

general survey of the main topics covered by sex education may be

given in the sixth or seventh and in the ninth school years.

Section 2

The organisation and scope of sex education shall be laid

down in or in accordance with the curriculum. If the special

instruction referred to in the second sentence of section 1 para. 3 is

provided, a small number of lessons shall be set aside for this

purpose in the relevant years.

Section 3

(1) Sex education shall be given by the teachers responsible

for giving lessons on the subjects with which it is integrated in the

relevant class and in accordance with the directives of the principal

of the school. If it is not clear from the curriculum which subjects

are linked to the various topics to be taught, the class teachers

shall distribute the work, as far as need be, in accordance with the

recommendation of the teachers' council; this latter opinion must be

approved by the school board pursuant to section 27 para. 5 of the School

Administration Act.

(2) A teacher cannot be compelled against his will to give the special

instruction referred to in the second sentence of section 1 para. 3. Nor

shall it be incumbent upon the teacher to impart to pupils information

about coital techniques or to use photographic pictures representing

erotic situations.

Section 4

On application to the principal of the school, parents may have their

children exempted from the special instruction referred to in the

second sentence of section 1 para. 3.

..."

32. In a Circular of 15 June 1972 (Cirkulaere om aendring af reglerne

om seksualoplysning i folkeskolen), sent to the same authorities as

that of 25 June 1970 (paragraph 22 above), the Minister of Education

stated that the aim of the new Executive Order was to enable local

school authorities and, consequently, parents to exert greater

influence on the organisation of the teaching in question. In

addition, sex education, which "remains an integral part of school

education, which is to say that it should form part of the instruction

given in obligatory subjects", was to have a more confined objective

and place greater emphasis on factual information.

The Circular pointed out that henceforth sex education could be

postponed until the third school year. It also mentioned that, whilst

the Executive Order no longer contained a reference to the Guide

- which was still in force -, this was to emphasise that the Guide was

simply an aid to local school authorities in the drawing up of

curricula.

Finally, the Circular gave details on the role of teachers. If a

teacher thought he would not be able to take care of this instruction

in a satisfactory manner, he should be afforded the opportunity of

attending one of the information courses provided by the Teachers'

Training College. In addition, the Minister expressly recommended

that special consideration be given to the personal and professional

qualifications of teachers when courses including sex education are

distributed amongst them.

According to the applicants, the result of the Executive Order of

15 June 1972 was to free teachers from the duty of giving instruction

in sex. It was alleged that in fact the Minister of Education issued

it because many teachers vigorously protested against this duty.

33. On 26 June 1975, the Danish Parliament passed a new State Schools

Act (Act No. 313), which became fully effective on 1 August 1976.

However, it has not amended any of the provisions relevant to the

present case; sex education remains an integral and obligatory part of

instruction in the elementary school. Neither has the Act changed the

former rules on the influence of parents on the management and

supervision of State schools.

While the Bill was being examined by Parliament, the Christian

People's Party tabled an amendment according to which parents would be

allowed to ask that their children be exempted from attending sex

education. This amendment was rejected by 103 votes to 24.

34. Although primary education in private schools must in principle

cover all the topics obligatory at State schools (paragraph 18 above),

sex education is an exception in this respect. Private schools are

free to decide themselves to what extent they wish to align their

teaching in this field with the rules applicable to State schools.

However, they must include in the biology syllabus a course on the

reproduction of man similar to that obligatory in State schools since

1960 (paragraph 19 above).

35. The applicants maintain that the introduction of compulsory sex

education did not correspond at all with the general wish of the

population. A headmaster in Nyborg allegedly collected 36,000 protest

signatures in a very short space of time. Similarly, an opinion poll

carried out by the Observa Institute and published on 30 January 1972

by a daily newspaper, the Jyllands-Posten, is said to have shown that,

of a random sample of 1,532 persons aged eighteen or more, 41 per

cent were in favour of an optional system, 15 per cent were against

any sex education whatsoever in primary schools and only 35 per cent

approved the system instituted by the 1970 Act.

According to the authors of two articles, published in 1975 in the

medical journal Ugeskrift for Laeger and produced to the Court by the

Commission, the introduction of sex education has not, moreover,

brought about the results desired by the legislator. On the contrary

indeed, the number of unwanted pregnancies and of abortions is said to

have increased substantially between 1970 and 1974. The Government

argue that the statistics from 1970 to 1974 cannot be taken as

reflecting the effects of legislation whose application in practice

began only in August 1973.

Facts relating to the applicants

36. Mr. and Mrs. Kjeldsen have a daughter called Karen. She was born

in December 1962 and attended St. Jacobi municipal school in Varde.

All the municipal schools in this town were still using, until the

1972/73 school year, the curricula adopted in 1969, that is, before

the 1970 Act entered into force. In Varde the curriculum changed only

with effect from the 1973/74 school year.

37. On 25 April 1971, the applicants asked the Minister of Education

to exempt their daughter from sex education, saying they wished to

give her this instruction themselves.

On 6 May 1971, the Ministry replied to the effect that a new Executive

Order on sex education in State schools was in the course of

preparation.

The applicants complained to the Danish Parliament but without any

result. They then approached the Parliamentary Ombudsman

(Folketingets ombudsmand) who told them on 2 June 1971 that he had no

competence to deal with the matter.

38. The Ministry of Education, in a letter of 14 July 1971, advised

the applicants that Executive Order No. 274 (paragraph 24 above) had

been issued and added that, for practical reasons, it was not possible

to exempt children from integrated sex instruction.

On 5 August 1971, the applicants wrote again to the Ministry of

Education, this time enquiring about sex education in private schools.

The Ministry told them on 20 September that private schools were not

obliged to provide instruction beyond that which, since 1960, they had

been obliged to give within the context of the biology syllabus.

Some weeks before, that is, on 31 August 1971, the school commission

of Varde had refused a request by the applicants that their daughter

should be given free private education.

39. On 13 October 1971, the Ministry replied to a further letter,

dated 6 September, in which the applicants had requested new

legislation to provide for free education without sex instruction.

The Ministry said that it did not intend to propose such legislation

and it also refused to arrange for the applicants' daughter to receive

separate education. Referring to the reply given to another person

who, in the same field, had invoked Article 2 of Protocol No. 1 (P1-2),

the Ministry stated that Danish legislation on sex education complied

with this provision, particularly in view of the existence of private

schools.

On 15 April 1972, the applicants asked the Ministry of Education why

the curricula of the Varde municipal schools had not yet been adapted

to the new legislation on sex education; the file in the case does not

reveal whether the Ministry replied.

40. Meanwhile, the applicants had withdrawn their daughter from the

St. Jacobi school and during the 1971/72 school year they educated

her at home. In August 1972 they again sent her to the Varde

municipal school (Brorsonskolen).

They maintained before the Commission that the nearest private school

was nineteen kilometres from their home and that their daughter, who

had diabetes, could not be away from home for a long period of time.

The Government did not contest these claims.

41. Mr. and Mrs. Busk Madsen have four children, the eldest of whom

began school in 1972 at a State school in Ĺbenrĺ. They attempted

unsuccessfully to have their children exempted from sex instruction.

42. Mr. and Mrs. Pedersen have five children, of whom three were of

school age in 1972. Two of them, Ester, born in 1957, and Svend, born

in 1965, attended private schools in order to avoid having to follow

sex education courses; the third, Hans Kristian, born in 1961, was

enrolled at the Poul Paghs Gade municipal school in Ĺlborg. The

applicants paid 660 Kroner a month for Ester, who left the latter

school in summer 1972 to attend a private boarding school at Korinth

(Fyn), and 75 Kroner for Svend.

The Pedersens had asked the competent authorities - likewise

unsuccessfully - to exempt their children from sex instruction. They

stated in their application that they were considering sending their

third child as well to a private school, if the Commission could not

help them.

43. In March 1972, the applicants complained about the use of certain

books on sex education at the above-mentioned school. These books had

apparently been approved by the school board in consultation with the

teachers at the school.

The Education and Culture Committee of the Northern Jutland County

Council (Nordjyllands amtsrĺds undervisnings - og kulturudvalg)

decided, however, on 16 June 1972 to uphold the school board's action

and this decision was confirmed by the Minister of Education on

13 March 1973.

PROCEEDINGS BEFORE THE COMMISSION

44. The present applications were lodged with the Commission on

4 April 1971 by Mr. and Mrs. Kjeldsen and on 7 October 1972 by Mr. and

Mrs. Busk Madsen and Mr. and Mrs. Pedersen. As the Busk Madsens and

the Pedersens stated that they regarded their applications as closely

linked with that of the Kjeldsens, the Commission decided on

19 July 1973 to join the three applications in accordance with the

then Rule 39 of its Rules of Procedure.

All the applicants maintained that integrated, and hence compulsory,

sex education, as introduced into State schools by the 1970 Act, was

contrary to the beliefs they hold as Christian parents and constituted

a violation of Article 2 of Protocol No. 1 (P1-2).

The Commission took its decision on 16 December 1972 on the

admissibility of the Kjeldsens' application, and on 29 May (partial

decisions) and 19 July 1973 (final decisions) on the admissibility of

the Busk Madsens' and the Pedersens' applications. They were accepted

insofar as the applicants challenged the 1970 Act under Article 2 of

Protocol No. 1 (P1-2), but rejected, for failure to exhaust domestic

remedies (Article 27 para. 3) (art. 27-3), insofar as the applicants were

complaining about "the directives issued and other administrative

measures taken by the Danish authorities" regarding the manner in

which sex education should be carried out.

In their written pleadings on the merits, Mr. and Mrs. Kjeldsen also

invoked Articles 8, 9 and 14 (art. 8, art. 9, art. 14) of the

Convention.

45. In its report of 21 March 1975, the Commission expressed the

opinion:

- that there is no violation of Article 2 of Protocol No. 1 (P1-2) in

the existence, per se, of the Danish system of sex education (seven

votes against seven, with the President exercising his casting vote in

accordance with the then Rule 18 para. 3 of the Commission's Rules of

Procedure);

- that there has been no violation of Article 8 (art. 8) of the

Convention (unanimously), or of Article 9 (art. 9) (unanimously);

- that no violation of Article 14 (art. 14) of the Convention is

disclosed by the facts of the case (seven votes against four, with

three abstentions).

The report contains three separate opinions.

FINAL SUBMISSIONS MADE TO THE COURT

46. At the oral hearings on 2 June 1976 the Commission's delegates

invited the Court to

"judge whether the introduction of integrated, and consequently

compulsory, sex education in State primary schools by the Danish Act

of 27 May 1970 constitutes, in respect of the applicants, a violation

of the rights and freedoms guaranteed by the European Convention on

Human Rights, and in particular those set out in Articles 8, 9

and 14 (art. 8, art. 9, art. 14) of the Convention and Article 2 of the

First Protocol (P1-2)".

For their part the Government, whilst making no formal submissions,

pleaded the absence of any breach of the requirements of the

Convention and of Protocol No. 1 (P1).

AS TO THE LAW

47. The Court must first rule on two preliminary questions.

The first concerns the declaration of withdrawal and the accessory

request for a separate trial of their cause made by Mr. and

Mrs. Kjeldsen (paragraph 11 above).

The declaration in issue, coming from individuals who are not entitled

under the Convention to refer cases to the Court, cannot entail the

effects of a discontinuance of the present proceedings (De Becker

judgment of 27 March 1962, Series A no. 4, p. 23, para. 4). Paragraph 1

of Rule 47 of the Rules of Court does not apply in the circumstances

since its covers solely discontinuance by a "Party which has brought

the case before the Court", that is to say by an Applicant Contracting

State in proceedings before the Court (paragraph (h) of Rule 1).

Admittedly paragraph 2 provides that the Court may, subject to

paragraph 3, strike out of its list a case brought before it by the

Commission, but the former paragraph makes such a decision dependent

upon the existence of "a friendly settlement, arrangement or other

fact of a kind to provide a solution of the matter". However, as the

principal delegate of the Commission emphasised at the hearing on the

morning of 1 June 1976, this condition has not been fulfilled in the

Kjeldsens' case. Furthermore, striking the case out of the Court's

list - which, moreover, has not been requested by the Government -

would be devoid of any practical interest in the circumstances: being

limited to application No. 5095/71, it would still leave pending the

applications of Mr. and Mrs. Busk Madsen and Mr. and Mrs. Pedersen

(nos. 5920/72 and 5926/72 respectively), which raise the same basic

problem.

This latter consideration leads the Court likewise to dismiss the

request for a separate trial.

48. In the second place, the Court deems it necessary to delimit the

object of the examination that it is required to undertake.

In 1972 and 1973 the Commission accepted the applications insofar as

they contested the compatibility of the Act of 27 May 1970, making sex

education compulsory in State schools, with Article 2 of

Protocol No. 1 (P1-2). The Commission held the applications

inadmissible, for non-exhaustion of domestic remedies, insofar as they

related to "the directives issued and other administrative measures

taken by the Danish authorities" regarding the manner in which such

education should be carried out. At paragraph 141 of its report of

21 March 1975, prior to formulating its opinion on the merits of the

case, the Commission indicated that its task was to concern itself

with "the Danish legislation which provides for integrated sex

education" and not with "the manner in which the instruction is given

in different schools". At paragraph 142, the Commission specified

that by legislation it meant Act No. 235 of 27 May 1970, Executive

Order No. 274 of 8 June 1971 and Executive Order No. 313 of

15 June 1972. The summary of facts appearing in the report mentioned

additionally the "Guide" of April 1971 and the Ministerial Circular of

8 June 1971 on sex education in State schools. Similarly, the request

instituting proceedings of 24 July 1975 spoke of the "Danish

legislation" and not of the Act of 27 May 1970 alone. In their

memorial of 11 May 1976 and during the hearings of 1 and 2 June 1976,

the delegates of the Commission quoted long extracts from the "Guide"

of April 1971 and from the Executive Orders of 8 June 1971 and

15 June 1972, although their final submissions referred solely to the

Act of 27 May 1970. The delegates expressed the opinion that, while

the Court has not to take cognisance of "the specific measures by

which sex education was carried out in the respective schools", that

is the steps taken "by the municipal authorities and by the parents'

associations", it "may ... look into the different measures of a

general nature taken by the ... Government"; they were of the view

that the Court's supervision extends to the Executive Orders of

8 June 1971 and 15 June 1972 "at least insofar as they serve for the

interpretation of the Act" of 27 May 1970. According to the

delegates, the Commission and the Government seem to be in agreement

on "this interpretation ... of the decisions on admissibility", the

drafting of which left room for "certain ambiguities".

In their memorial of 8 March 1976, the Government inferred from

paragraph 141 of the Commission's report "that an examination of the

case must proceed on the basis that the Act" of 27 May 1970 "is being

implemented in pursuance of the precepts laid down in the Executive

Order of 15 June 1972". Among "the material on which the Court must

act", the Government included the Executive Orders and Circulars of

8 June 1971 and 15 June 1972; as a result, the Registrar, acting on

instructions from the President of the Chamber, obtained the text of

these instruments from the Commission (Order of 20 March 1976).

"To stave off any impact by wrongful ideas about 'the manner in which

sex education is carried out'", the Government in addition supplied

the registry with an English translation of the "Guide" of April 1971;

their Agent read out a passage from the preface to the "Guide" during

his oral arguments on 1 June 1976.

Under these conditions, the Court considers that it is called upon to

ascertain whether or not the Act of 27 May 1970 and the delegated

legislation of general application issued thereunder contravenes the

Convention and Protocol No. 1 (P1), but that the particular measures of

implementation decided upon at the level of each municipality or

educational institution fall outside the scope of its supervision.

Section 1 para. 25 of the Act of 27 May 1970 did no more than supplement

the list of compulsory "integrated" subjects by adding, among others,

sex education. The Minister of Education was entrusted with fixing

the manner of implementing the principle thus enacted (paragraph 22

above). The Executive Orders and Circulars of 8 June 1971 and

15 June 1972, issued in pursuance of this enabling clause, therefore

form a whole with the Act itself and only by referring to them can the

Court make an appraisal of the Act; if it were otherwise, the

reference of the present case to the Court would, moreover, hardly

have served any useful purpose. It should nevertheless be pointed

out, as is done by the Commission (paragraph 145 in fine of the

report), that the instant case does not extend to the provisions on

the special, optional lessons on sex education (sections 1 para. 2 in

fine, 2 para. 1 in fine, 3 para. 2 and 4 para. 2 in fine of the Executive

Order of 8 June 1971, and subsequently sections 1 para. 3 in fine, 2 in fine,

3 para. 2 and 4 of the Executive Order of 15 June 1972); it covers solely

those provisions concerned with the sex education integrated in the teaching

of compulsory subjects.

The "Guide" of April 1971, on the other hand, is not a legislative or

regulatory text, but a working document intended to assist and advise

the local school authorities; while the Executive Order (section 2)

and the Circular of 8 June 1971 mentioned it, the same is not true of

those of 15 June 1972 (paragraphs 24-25 and 31-32 above). It

nevertheless remains in use throughout the whole country and was

frequently cited by those appearing before the Court. Consequently,

the Court will have regard to the "Guide" insofar as it contributes to

an elucidation of the spirit of the legislation in dispute.

Act No. 313 of 26 June 1975, which became fully effective on

1 August 1976, does not call for separate examination as it does not

amend any of the provisions relevant to this case (paragraph 33

above).

I. ON THE ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2)

49. The applicants invoke Article 2 of Protocol No. 1 (P1-2) which

provides:

"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."

50. In their main submission before the Commission, the Government

maintained that the second sentence of Article 2 (P1-2) does not apply

to State schools (paragraphs 104-107 of the report and the memorial of

29 November 1973), but their arguments have since evolved slightly. In

their memorial of 8 March 1976 and at the hearings on 1 and

2 June 1976, they conceded that the existence of private schools

perhaps does not necessarily imply in all cases that there is no

breach of the said sentence. The Government nevertheless emphasised

that Denmark does not force parents to entrust their children to the

State schools; it allows parents to educate their children, or to have

them educated, at home and, above all, to send them to private

institutions to which the State pays very substantial subsidies,

thereby assuming a "function in relation to education and to

teaching", within the meaning of Article 2 (P1-2). Denmark, it was

submitted, thereby discharged the obligations resulting from the

second sentence of this provision.

The Court notes that in Denmark private schools co-exist with a system

of public education. The second sentence of Article 2 (P1-2) is

binding upon the Contracting States in the exercise of each and every

function - it speaks of "any functions" - that they undertake in the

sphere of education and teaching, including that consisting of the

organisation and financing of public education.

Furthermore, the second sentence of Article 2 (P1-2) must be read

together with the first which enshrines the right of everyone to

education. It is on to this fundamental right that is grafted the

right of parents to respect for their religious and philosophical

convictions, and the first sentence does not distinguish, any more

than the second, between State and private teaching.

The "travaux préparatoires", which are without doubt of particular

consequence in the case of a clause that gave rise to such lengthy and

impassioned discussions, confirm the interpretation appearing from a

first reading of Article 2 (P1-2). Whilst they indisputably

demonstrate, as the Government recalled, the importance attached by

many members of the Consultative Assembly and a number of governments

to freedom of teaching, that is to say, freedom to establish private

schools, the "travaux préparatoires" do not for all that reveal the

intention to go no further than a guarantee of that freedom. Unlike

some earlier versions, the text finally adopted does not expressly

enounce that freedom; and numerous interventions and proposals, cited

by the delegates of the Commission, show that sight was not lost of

the need to ensure, in State teaching, respect for parents' religious

and philosophical convictions.

The second sentence of Article 2 (P1-2) aims in short at safeguarding

the possibility of pluralism in education which possibility is

essential for the preservation of the "democratic society" as

conceived by the Convention. In view of the power of the modern

State, it is above all through State teaching that this aim must be

realised.

The Court thus concludes, as the Commission did unanimously, that the

Danish State schools do not fall outside the province of Protocol

No. 1 (P1). In its investigation as to whether Article 2 (P1-2) has been

violated, the Court cannot forget, however, that the functions assumed

by Denmark in relation to education and to teaching include the grant

of substantial assistance to private schools. Although recourse to

these schools involves parents in sacrifices which were justifiably

mentioned by the applicants, the alternative solution it provides

constitutes a factor that should not be disregarded in this case.

The delegate speaking on behalf of the majority of the Commission

recognised that it had not taken sufficient heed of this factor in

paragraphs 152 and 153 of the report.

51. The Government pleaded in the alternative that the second

sentence of Article 2 (P1-2), assuming that it governed even the State

schools where attendance is not obligatory, implies solely the right

for parents to have their children exempted from classes offering

"religious instruction of a denominational character".

The Court does not share this view. Article 2 (P1-2), which applies

to each of the State's functions in relation to education and to

teaching, does not permit a distinction to be drawn between religious

instruction and other subjects. It enjoins the State to respect

parents' convictions, be they religious or philosophical, throughout

the entire State education programme.

52. As is shown by its very structure, Article 2 (P1-2) constitutes a

whole that is dominated by its first sentence. By binding themselves

not to "deny the right to education", the Contracting States guarantee

to anyone within their jurisdiction "a right of access to educational

institutions existing at a given time" and "the possibility of

drawing", by "official recognition of the studies which he has

completed", "profit from the education received" (judgment of

23 July 1968 on the merits of the "Belgian Linguistic" case,

Series A no. 6, pp. 30-32, paras. 3-5).

The right set out in the second sentence of Article 2 (P1-2) is an

adjunct of this fundamental right to education (paragraph 50 above).

It is in the discharge of a natural duty towards their children

- parents being primarily responsible for the "education and teaching"

of their children - that parents may require the State to respect

their religious and philosophical convictions. Their right thus

corresponds to a responsibility closely linked to the enjoyment and

the exercise of the right to education.

On the other hand, "the provisions of the Convention and Protocol must

be read as a whole" (above-mentioned judgment of 23 July 1968, ibid.,

p. 30, para. 1). Accordingly, the two sentences of Article 2 (P1-2) must

be read not only in the light of each other but also, in particular,

of Articles 8, 9 and 10 (art. 8, art. 9, art. 10) of the Convention

which proclaim the right of everyone, including parents and children,

"to respect for his private and family life", to "freedom of thought,

conscience and religion", and to "freedom ... to receive and impart

information and ideas".

53. It follows in the first place from the preceding paragraph that

the setting and planning of the curriculum fall in principle within

the competence of the Contracting States. This mainly involves

questions of expediency on which it is not for the Court to rule and

whose solution may legitimately vary according to the country and the

era. In particular, the second sentence of Article 2 of the

Protocol (P1-2) does not prevent States from imparting through

teaching or education information or knowledge of a directly or

indirectly religious or philosophical kind. It does not even permit

parents to object to the integration of such teaching or education in

the school curriculum, for otherwise all institutionalised teaching

would run the risk of proving impracticable. In fact, it seems very

difficult for many subjects taught at school not to have, to a greater

or lesser extent, some philosophical complexion or implications. The

same is true of religious affinities if one remembers the existence of

religions forming a very broad dogmatic and moral entity which has or

may have answers to every question of a philosophical, cosmological or

moral nature.

The second sentence of Article 2 (P1-2) implies on the other hand that

the State, in fulfilling the functions assumed by it in regard to

education and teaching, must take care that information or knowledge

included in the curriculum is conveyed in an objective, critical and

pluralistic manner. The State is forbidden to pursue an aim of

indoctrination that might be considered as not respecting parents'

religious and philosophical convictions. That is the limit that must

not be exceeded.

Such an interpretation is consistent at one and the same time with the

first sentence of Article 2 of the Protocol (P1-2), with Articles 8

to 10 (art. 8, art. 9, art. 10) of the Convention and with the general

spirit of the Convention itself, an instrument designed to maintain

and promote the ideals and values of a democratic society.

54. In order to examine the disputed legislation under Article 2

of the Protocol (P1-2), interpreted as above, one must, while avoiding

any evaluation of the legislation's expediency, have regard to the

material situation that it sought and still seeks to meet.

The Danish legislator, who did not neglect to obtain beforehand the

advice of qualified experts, clearly took as his starting point the

known fact that in Denmark children nowadays discover without

difficulty and from several quarters the information that interests

them on sexual life. The instruction on the subject given in State

schools is aimed less at instilling knowledge they do not have or

cannot acquire by other means than at giving them such knowledge more

correctly, precisely, objectively and scientifically. The

instruction, as provided for and organised by the contested

legislation, is principally intended to give pupils better

information; this emerges from, inter alia, the preface to the "Guide"

of April 1971.

Even when circumscribed in this way, such instruction clearly cannot

exclude on the part of teachers certain assessments capable of

encroaching on the religious or philosophical sphere; for what are

involved are matters where appraisals of fact easily lead on to

value-judgments. The minority of the Commission rightly emphasised

this. The Executive Orders and Circulars of 8 June 1971 and

15 June 1972, the "Guide" of April 1971 and the other material before

the Court (paragraphs 20-32 above) plainly show that the Danish State,

by providing children in good time with explanations it considers

useful, is attempting to warn them against phenomena it views as

disturbing, for example, the excessive frequency of births out of

wedlock, induced abortions and venereal diseases. The public

authorities wish to enable pupils, when the time comes, "to take care

of themselves and show consideration for others in that respect", "not

... [to] land themselves or others in difficulties solely on account

of lack of knowledge" (section 1 of the Executive Order of

15 June 1972).

These considerations are indeed of a moral order, but they are very

general in character and do not entail overstepping the bounds of what

a democratic State may regard as the public interest. Examination of

the legislation in dispute establishes in fact that it in no way

amounts to an attempt at indoctrination aimed at advocating a specific

kind of sexual behaviour. It does not make a point of exalting sex or

inciting pupils to indulge precociously in practices that are

dangerous for their stability, health or future or that many parents

consider reprehensible. Further, it does not affect the right of

parents to enlighten and advise their children, to exercise with

regard to their children natural parental functions as educators, or

to guide their children on a path in line with the parents' own

religious or philosophical convictions.

Certainly, abuses can occur as to the manner in which the provisions

in force are applied by a given school or teacher and the competent

authorities have a duty to take the utmost care to see to it that

parents' religious and philosophical convictions are not disregarded

at this level by carelessness, lack of judgment or misplaced

proselytism. However, it follows from the Commission's decisions on

the admissibility of the applications that the Court is not at present

seised of a problem of this kind (paragraph 48 above).

The Court consequently reaches the conclusion that the disputed

legislation in itself in no way offends the applicants' religious and

philosophical convictions to the extent forbidden by the second

sentence of Article 2 of the Protocol (P1-2), interpreted in the light

of its first sentence and of the whole of the Convention.

Besides, the Danish State preserves an important expedient for parents

who, in the name of their creed or opinions, wish to dissociate their

children from integrated sex education; it allows parents either to

entrust their children to private schools, which are bound by less

strict obligations and moreover heavily subsidised by the State

(paragraphs 15, 18 and 34 above), or to educate them or have them

educated at home, subject to suffering the undeniable sacrifices and

inconveniences caused by recourse to one of those alternative

solutions.

55. The applicants also rely on the first sentence of Article 2

(P1-2). In this connection, it suffices to note that the respondent

State has not denied and does not deny their children either access to

educational institutions existing in Denmark or the right of drawing,

by official recognition of their studies, profit from the education

received by them (judgment of 23 July 1968 on the merits of the

"Belgian Linguistic" case, Series A no. 6, pp. 30-32, paras. 3-5).

II. ON THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

TAKEN TOGETHER WITH ARTICLE 2 OF PROTOCOL No. 1 (art. 14+P1-2)

56. The applicants also claim to be victims, in the enjoyment of the

rights protected by Article 2 of Protocol No. 1 (P1-2), of a

discrimination, on the ground of religion, contrary to Article 14

(art. 14) of the Convention. They stress that Danish legislation

allows parents to have their children exempted from religious

instruction classes held in State schools, whilst it offers no similar

possibility for integrated sex education (paragraphs 70, 80 and

171-172 of the Commission's report).

The Court first points out that Article 14 (art. 14) prohibits, within

the ambit of the rights and freedoms guaranteed, discriminatory

treatment having as its basis or reason a personal characteristic

("status") by which persons or groups of persons are distinguishable

from each other. However, there is nothing in the contested

legislation which can suggest that it envisaged such treatment.

Above all, the Court, like the Commission (paragraph 173 of the

report), finds that there is a difference in kind between religious

instruction and the sex education concerned in this case. The former

of necessity disseminates tenets and not mere knowledge; the Court has

already concluded that the same does not apply to the latter

(paragraph 54 above). Accordingly, the distinction objected to by the

applicants is founded on dissimilar factual circumstances and is

consistent with the requirements of Article 14 (art. 14).

III. ON THE ALLEGED VIOLATION OF ARTICLES 8 AND 9 (art. 8, art. 9)

OF THE CONVENTION

57. The applicants, without providing many details, finally invoke

Articles 8 and 9 (art. 8, art. 9) of the Convention taken together

with Article 2 of Protocol No. 1 (art. 8+P1-2, art. 9+P1-2).

They allege that the legislation of which they complain interferes

with their right to respect for their private and family life and with

their right to freedom of thought, conscience and religion (paragraphs

54, 55, 72, 89 and 170 of the Commission's report).

However, the Court does not find any breach of Articles 8 and 9

(art. 8, art. 9) which, moreover, it took into account when

interpreting Article 2 of Protocol No. 1 (P1-2) (paragraphs 52 and

53 above).

IV. ON THE APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

58. Having found no breach of Protocol No. 1 (P1) or of the

Convention, the Court notes that the question of the application of

Article 50 (art. 50) does not arise in the present case.

FOR THESE REASONS, THE COURT

1. Holds by six votes to one that there has been no breach of

Article 2 of Protocol No. 1 (P1-2) or of Article 14 of the

Convention taken together with the said Article 2 (art. 14+P1-2);

2. Holds unanimously that there has been no breach of Articles 8

and 9 of the Convention taken together with Article 2 of

Protocol No. 1 (art. 8+P1-2, art. 9+P1-2).

Done in French and English, the French text being authentic, at the

Human Rights Building, Strasbourg, this seventh day of December, one

thousand nine hundred and seventy-six.

Signed: Giorgio BALLADORE PALLIERI

President

Signed: Marc-André EISSEN

Registrar

Judge Verdross has annexed his separate opinion to the present

judgment, in accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 50 para. 2 of the Rules of Court.

Initialled: G. B. P.

Initialled: M.-A. E.

SEPARATE OPINION OF JUDGE VERDROSS

(Translation)

I have approved paragraphs 1 to 52, 55 and 57 of the judgment but, to

my great regret, I have not been able to vote for item 1 of the

operative provisions or to accept the grounds given therefor

(paragraphs 53-54 and 56). My reasons are as follows:

I am in agreement with the Danish Government's starting point, which

is upheld in the judgment, namely that no provision in the Convention

prevents the Contracting States from integrating in their school

systems instruction on sexual matters and from thereby making such

instruction in principle compulsory. The second sentence of Article 2

of Protocol No. 1 (P1-2) thus does not prevent the States from

disseminating in State schools, by means of the teaching given,

objective information of a religious or philosophical character.

However, this freedom enjoyed by the States is limited by the second

sentence of Article 2 of Protocol No. 1 (P1-2) according to which

parents may require that their religious and philosophical convictions

be respected in this teaching.

Since the applicants in the present case consider themselves wronged

in relation to their "Christian convictions", we can leave aside the

question of how the term "philosophical convictions" is to be

understood. It is sufficient for us to examine whether the Government

complained against has respected the parents' Christian convictions in

the context of sex education.

Admittedly, the applicants' assertions in this respect are not

altogether precise. Their complaints are nevertheless sufficiently

clear to show what is in issue. The applicants are in fact objecting

to the State prematurely giving "detailed" teaching on sexual matters;

they contend that the State's monopoly in the realm of education

deprives them of their basic right "to ensure their children's

education in conformity with their own religious convictions". This

makes it quite plain that they are basing their complaints on a well

established Christian doctrine whereby anything affecting the

development of children's consciences, that is their moral guidance,

is the responsibility of parents and, consequently, in this sphere the

State may not intervene between parents and their children against the

former's wishes.

The applicants admittedly subscribe to the same religion as the great

majority of the country, but they belong apparently to a group more

faithful to the Christian tradition than their compatriots who are

liberal or indifferent to religion. However, as all the rights

protected by the Convention and its Protocols are rights of individual

human beings, the Court is not called upon to ascertain whether the

rights of persons belonging to any given sect are violated or not.

The Court has the sole obligation of deciding whether in the instant

case the rights of the applicants have been respected or not.

The question thus arises whether the parents concerned in the current

proceedings may, in pursuance of Article 2 (P1-2) cited above, oppose

compulsory sex education in a State school even if, as in the present

circumstances, such education does not constitute an attempt at

indoctrination.

To be able to answer this question, it seems to me necessary to

distinguish between, on the one hand, factual information on human

sexuality that comes within the scope of the natural sciences, above

all biology, and, on the other hand, information concerning sexual

practices, including contraception. This distinction is required, in

my view, by the fact that the former is neutral from the standpoint of

morality whereas the latter, even if it is communicated to minors in

an objective fashion, always affects the development of their

consciences. It follows that even objective information on sexual

activity when given too early at school can violate the Christian

convictions of parents. The latter accordingly have the right to

object.

Article 10 (art. 10) of the Convention, which embodies the freedom of

everyone to receive and impart information, cannot be relied upon so

as to counter this opinion, since Article 2 of Protocol No. 1 (P1-2)

constitutes a special rule derogating from the general principle in

Article 10 (art. 10) of the Convention. Article 2 (P1-2) of the said

Protocol thus gives parents the right to restrict the freedom to

impart to their children not yet of age information affecting the

development of the latter's consciences.

According to the judgment, it is true, the aforementioned clause of

Article 2 (P1-2) prohibits solely education given with the object of

indoctrination. However, this clause does not contain any indication

justifying a restrictive interpretation of such a kind. On the

contrary indeed, it requires the States, in an unqualified manner, to

respect parents' religious and philosophical convictions; it makes no

distinction at all between the different purposes for which the

education is provided. Since the applicants consider themselves

wronged in relation to their "Christian convictions" as a result of

the obligation on their children to take part in "detailed" teaching

on sexual matters, the Court ought to have restricted itself to

ascertaining whether, should there have been any doubt, this complaint

tallied or not with the beliefs professed by the applicants.

In this respect, the Court's power seems to me to be similar to that

possessed by the bodies responsible, in various countries, for

verifying the truth of statements made by persons called up for

military service who claim that their religion or philosophy prevents

them from carrying arms (conscientious objectors). These bodies have

to respect the ideology of the persons concerned once such ideology

has been clearly made out.

The distinction between information on the knowledge of man's

sexuality in general and that concerning sexual practices is

recognised under the Danish legislation itself. While private schools

are required under the legislation to include in their curricula a

biology course on the reproduction of man, they are left the choice

whether or not to comply with the other rules compulsory for State

schools in sexual matters. The legislature itself is thereby

conceding that information on sexual activity may be separated from

other information on the subject and that, consequently, an exemption

granted to children in respect of a specific course of the first

category does not prevent the integration in the school system of

scientific knowledge on the subject.

The Danish Act on State schools does not in any way exempt the

children of parents having religious convictions at variance with

those of the legislature from attending the whole range of classes on

sex education. The conclusion must therefore be that the Danish Act,

within the limits indicated above, is not in harmony with the second

sentence of Article 2 of Protocol No. 1 (P1-2).

This conclusion is not weakened by the entitlement given to parents to

send their children to a private school subsidised by the State or to

have them taught at home. On the one hand in fact, the parents' right

is a strictly individual right, whereas the opening of a private

school always presupposes the existence of a certain group of persons

sharing certain convictions in common. Since the State should respect

parents' religious convictions even if there existed one couple alone

whose convictions as to the development of their children's

consciences differ from those of the majority of the country or of a

particular school, it can discharge this particular duty only by

exempting the children from the classes on sexual practices. Moreover,

one cannot fail to recognise that education at a private school, even

one subsidised by the State, and teaching at home always entail

material sacrifices for the parents. Thus, if the applicants were not

entitled to have their children exempted from the classes in question,

there would exist an unjustified discrimination, contrary to

Article 14 (art. 14) of the Convention, prejudicing them in comparison

with parents whose religious and moral convictions correspond to those

of the Danish legislature.