Children as religious rights-holders?: Perovy

To what extent do children have independent religious rights? That question recently came before the ECtHR – and received a rather equivocal reply.

Background

In Perovy v Russia 47429/09 [2020] ECHR 742, the first and second applicants were the mother and father of the third applicant, now an adult. The father was a priest of the Church of the Community of Christ. When their son was aged seven he started school. On his first full day, on 3 September 2007, an Orthodox priest conducted a rite of blessing in the classroom which had been arranged at a parent-teacher meeting at which the Perovys had not been present. The teacher told the priest that one of the children was of a different faith without disclosing the child’s identity, and the priest said that the boy could just be present during the rite. Some of the children and adults made the sign of the cross and the priest invited the children to kiss a crucifix. The third applicant did neither [10-13].

The third applicant said that he felt very uncomfortable during the rite because other children were putting pressure on him to kiss the crucifix and laughed at him for not knowing how to cross himself in the Russian Orthodox manner. He alleged that some classmates had beaten him up for not making the sign of the cross “like everyone else”. His father said that when he came to pick up his son after classes, he found him hiding under a staircase and crying. His mother said that he had told her that the rite of blessing of the classroom had caused him profound distress [14].

The parents complained to the school, the local department of education and the prosecutor’s office of the Voronezh Region about the incident and asked for a criminal investigation into the alleged beating-up. The boy was transferred to another class and allowed a week off school, and the parents lodged a complaint against the school administration with the local department of education. The prosecutor’s office decided that the incident had violated the international, constitutional, federal and regional norms and rules guaranteeing the secular character of state educational programmes, religious freedom and the right of parents to raise their children in accordance with their convictions and ordered disciplinary proceedings against the teacher, who was subsequently reprimanded – though no criminal proceedings were instituted [15-19]. The parents also sued, but their claims in the domestic courts were dismissed.

Before the Third Section, the parents alleged a violation of their right under Article 2 of Protocol No. 1 to ensure the education of their son in conformity with their own religious convictions and all three applicants complained that the son had been forced to participate in the rite of blessing of the classroom against his and his parents’ will, contrary to Article 9 [31 & 32]. By four votes to three, the Third Section dismissed the application, though it was unanimous in holding that no separate issue arose in relation to the parents’ rights under Article 9.

The majority judgment

The majority (Lemmens, Dedov, Schembri Orland and Guerra Martins JJ) took note of the Government’s objection that the parents’ complaints under Article 2 of Protocol No. 1 were incompatible ratione materiae on the grounds that the rite of blessing had not affected the educational process; however, they were not ill-founded [52 & 53]. The rite had been an isolated event in response to the wishes and on the initiative of the majority of the schoolchildren’s parents and formed no part of the official curriculum. That did not outweigh the fact that the blessing of the classroom took place on the premises of the municipal school and at the very least with the tacit approval of the teacher [60] and engaged A2P1 [61].  However, “similarly to the Lautsi case” there was no evidence that the incident “had an influence on the pupils”, and “the first and the second applicants’ subjective perception [was] not in itself sufficient to establish a breach of Article 2 of Protocol No. 1” [65].

In their view, it had been an isolated incident and there was no evidence that it had involved indoctrination [67], and the domestic authorities had acted “swiftly and adequately” on the complaints [68]. The majority therefore found that there had been no violation of A2P1 [76 & 77]

The minority judgment

The minority (Keller, Serghides and Poláčková JJ) disagreed. As to the parents’ rights under A2P1:

“Nothing before the Court suggests that the teacher could not have notified the parents …. Given the importance of such a decision as well as the fact that some parents were absent [when the decision was made], the school had an obligation to inform the parents about the rite in advance in order to fulfil its duty of religious neutrality. We therefore conclude that there has been a violation of Article 2 of Protocol No. 1” [8]

Perhaps more importantly, they went on to deprecate the Court’s practice of examining such cases solely in terms of A2 P1, thereby disregarding that right on the part of children:

“It seems obvious to us that a child in such a situation should be protected by his or her own rights under Article 9 and should therefore be able to rely on freedom of religion in his or her own name. The Court’s practice to date is inconsistent with the special character of the Convention – Article 1 of which obliges the High Contracting Parties to secure the right to freedom of religion to ‘everyone’ within their jurisdiction” [10].

Nor were there any countervailing factors [11]. The minority was also highly critical of the conduct of the class teacher and held that the incident had breached the third applicant’s Article 9 rights:

“considering the age of the third applicant, the circumstances of the first day of school, and the fact that he had virtually no possibility of escaping the religious act, the State – in our humble opinion – violated its duty of religious neutrality” [23].

The majority’s concurring judgment

Unusually, the majority also issued a separate concurring opinion, giving “a short reaction” to the joint dissenting opinion of their colleagues: that the authorities had condemned what had happened [2] and that the case was not about “the fundamental principles of freedom of religion” but about “an error of judgment” and “could have been better solved by a constructive talk between the parents and the school, rather than through bitter lawsuits brought before the domestic courts and the Strasbourg Court” [3].

Comment

The majority’s concurring judgment came dangerously close to suggesting that – to use non-judicial language – the applicants should quit moaning and get a life. The minority, on the other hand, thought that the Court’s practice of examining such cases solely in terms of A2P1 was flawed because “it cannot be presumed that the child’s interests and those of the parents coincide” [11] and that “[i]n the interests of the proper administration of justice, and to be true to its role in the Convention system, the Court ought to adjust its practice” [13].

It will be interesting to see what the Grand Chamber makes of the case if it is appealed.

3 thoughts on “Children as religious rights-holders?: Perovy

    • Yes. See, for example, Joint Committee on Human Rights, Twenty-eighth Report of Session 2005–06 HL 247, HC 1626, Legislative Scrutiny: Fourteenth Progress Report, Drawing special attention to: Companies Bill & Education and Inspections Bill.

      • Thank you, be interesting to see this revisited.
        “An amendment to the Bill which gave pupils over the age of 16 the right to withdraw from collective worship would therefore reduce the extent of the incompatibility of the present law with the UK’s human rights obligations, but it would not remove that incompatibility altogether.”

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