By Inez van Soolingen (Vrije Universiteit Amsterdam)
In the case of Perovy v. Russia, Ms. Perova and Mr. Perov complained that a rite of blessing in their son’s classroom, carried out by a priest of a different belief than their own, violated their rights under Article 2 of Protocol No. 1 (hereafter: the Protocol) and their son’s right under Article 9 of the European Convention on Human Rights (hereafter: the Convention). Even though the European Court of Human Rights (hereafter: the Court) was right in concluding that the state did not violate the rights of the parents or their son in this case, its overall reasoning leaves something to be desired. The Court pays no attention to the fact that the boy was only seven years old at the time, whilst the Grand Chamber highlighted, in a similar case, the importance of taking into account the young age of pupils when they are subjected to religious symbols.
Conflicts in the classroom
That the right to freedom of religion and its limits continue to take up a central place in debates has become increasingly apparent all over Europe. For example, dealing with the aftermath of the cruel death of teacher Samuel Paty – who had to pay the highest price for showing a cartoon of the prophet Mohammed during a lecture about freedom of speech – the French authorities saw no other solution than to close a mosque that allegedly spread the call for action against the teacher on social media. The continuing French actions against radicalized Muslims bring about issues concerning the government’s interference with fundamental rights such as the freedom of religion and the freedom of association. At the same time, Macron tries to disregard the discussion by persisting that “[France] will bring secularism” .
While France struggles to protect its freedom of speech in the classroom from religious extremists, other conflicts in school concern the practice of one’s right to freedom of religion itself. Some of these cases are eventually brought before the European Court of Human Rights (hereafter: the Court), like the case of Lautsi and others v. Italy, when the Court decided that the presence of crucifixes in Italian classrooms caused no violation of Article 2 of Protocol No. 1 (hereafter: the Protocol). Another case concerned the question as to whether Switzerland prohibiting a Muslim teacher to wear a headscarf while teaching violated her right to freedom of religion, as laid down in Article 9 of the European Convention on Human Rights (hereafter: the Convention) [Dahlab v. Switzerland].
Why Ms. Perova and Mr. Perov went to court
The case of Perovy illustrates that the Russian educational sphere too, can be the scene of conflicts regarding the right to freedom of religion. When the seven-year-old son of Ms. Perova and Mr. Perov attended his first day of municipal school in 2007, he and his classmates were subjected to a rite of blessing. Following the request of some of the pupil’s parents, the rite was carried out by the father of one of the boy’s classmates: a priest of the Russian Orthodox Church. The boy, who was being raised according to the teachings of the Church of the Community of Christ, afterwards declared to have experienced profound distress by the rite. The fact that other children were putting pressure on him to kiss the crucifix and laughed at him for not knowing how to make the sign of the cross as per the Russian Orthodox tradition probably had something to do with it. The boy’s father later declared that, when he came to pick his son up, he found him hiding under a staircase and crying, beaten up by his classmates.
The parents of the boy, who had left the school before the rite started due to other obligations, were not informed of the intentions to perform the rite. However, the teacher had been aware of the boy’s different belief and had informed the priest accordingly, without disclosing the boy’s identity. The boy was not given the option to leave the classroom before the rite started, nor did the teacher or the priest warn him about the Orthodox rite.
Following these events, the parents of the boy complained of the incident to the prosecutor’s office and to the local department of education. As a result, the boy was transferred to another class and allowed a week off from school. The prosecutor’s office decided that the performance of the rite without the consent of the parents violated international, constitutional, federal and regional norms and rules and that this violation was facilitated by the teacher. Following this ruling, Ms. Perova and Mr. Perov lodged a statement of claims with the Gribanovskiy District Court, seeking compensation in respect of non-pecuniary damage from the school. In their complaint, they alleged that national authorities had breached their right to ensure education and teaching in conformity with their religious convictions, as protected under Article 2 of the Protocol and their son’s right to freedom of religion as protected by Article 9 of the Convention. When the District Court dismissed their claim in full and the Regional Court dismissed their appeal, Ms. Perova and Mr. Perov filed the complaint before the Court.
The Court concluded, with four to three judges, that neither Article 2 of the Protocol, nor Article 9 of the Convention was violated. It argued that there was no evidence that the mere presence during a one-off short ceremony had an influence on the pupils, and so it cannot reasonably be ascertained whether or not it had an effect on the applicants’ son. In addition, the Court found no evidence that the experience of the applicants’ son was marked by any indoctrination or coercion, as the rite of blessing was an isolated incident and limited in scope and duration, nor did it find any evidence capable of demonstrating any effects of the rite on the rearing of their child in accordance with the teachings of the parents’ faith. In addition, it decided there was insufficient proof that the ceremony had caused profound distress to their son. Furthermore, the Court emphasized that the response of domestic authorities to the applicants’ complaints was swift and adequate. It highlighted that the authorities acknowledged that there had been a breach of the applicants’ rights, by swiftly ordering that disciplinary proceedings be instituted against the teacher and imposing a disciplinary sanction on the school principal for having breached the applicants’ son’s rights. Moreover, the Court found that domestic courts had carefully examined the applicants’ claims and heard all of the relevant participants in civil proceedings. Finally, the Court concluded that the national courts did well by accepting that the failure to notify the applicants and their son of the forthcoming rite was an omission on the part of the teacher.
The Court drew its conclusion by heavily relying on the Grand Chamber’s judgment in the case of Lautsi in which it, as mentioned above, decided that the presence of crucifixes in Italian classrooms caused no violation of Article 2 of the Protocol. But one could argue that the Court’s reasoning in the current case leaves something to be desired, as the judges disregarded the young age of the boy, whilst the Court highlighted in the case of Dahlab that the young age of pupils should be taken into account in cases that concern religious symbolism in the classroom.
Apples, oranges and cherries
In Dahlab, the Court decided that the prohibition of a Muslim teacher to wear a headscarf while teaching did not violate the teacher’s right to freedom of religion, as laid down in Article 9 of the Convention. In its reasoning, the Court paid extra attention to the young age of the pupils subjected to the teacher’s practice of her religion. Although the Court in this case decided that specifically “the wearing of a headscarf” might have some kind of “proselytizing effect” – referring to “a precept which is laid down in the Koran and which […] is hard to square with the principle of gender equality [and] therefore appears difficult to reconcile […] with the message of tolerance, respect for others etc..” – this does not in any way alleviate the Court’s statement in the same case, that the age between four and eight is “an age at which children wonder about many things and are also more easily influenced than older pupils.”
In Lautsi, the Court disregarded Dahlab for a particular reason, namely that “the facts of the two cases are entirely different.” With this reasoning in mind, and without a satisfying explanation as to why the circumstances in the current case should also be seen as “entirely different” from those in Dahlab, one might wonder why the Court decided to refer to Lautsi in this case and leave Dahlab aside. After all, it can be argued that the facts of Lautsi and Perovy are different as well. For instance, the boy in Perovy did not have the option to simply ignore the religious symbolism he was being exposed to: he had no choice but to be actively present, as he was asked to kiss the crucifix the priest offered him – which he refused – and to make the cross as per the Orthodox tradition – which he did not know how to. This deviates from the circumstances in Lautsi, as the pupils in that case had the option to simply ignore the crucifixes in the classroom: they were not asked to actively be present at the performance of a religious ceremony. Furthermore, Lautsi concerned a group of pupils that was subjected to a more systematical presence of religious symbols, as opposed to one particular pupil in the Perovy case – the son of Ms. Perova and Mr. Perov – who was forced to be present at a single religious ceremony of a different belief. Hence, one might wonder if the Court is comparing apples and oranges now, even though it explicitly refused to do so in Lautsi.
Surely, the current case also has characteristics that differ from those in Dahlab. For example, the complaint in Dahlab concerned an alleged violation of the right to freedom of religion of the teacher, while in Perovy the complaint focused on a breach of the right to freedom of religion of the pupil. And, similar to Lautsi, the case of Dahlab concerned a more systematical exposure of a group of pupils to a religious symbol, whilst, as mentioned, the case of Perovy did not. Yet, a comparison of important facts of both Dahlab and the current case shows that a more substantiated reason for disregarding Dahlab is required from the Court. Because Perovy and Dahlab have at least as much important commonalities as Perovy and Lautsi have. After all, the actions in both cases can be considered as not initiated by the school, as the rite in Perovy was initiated by the parents of some of the pupils and in Dahlab, the wearing of the headscarf was a decision made by the teacher herself. This too is to be differentiated from the circumstances in Lautsi, as the placement of the crucifixes in classrooms should be considered as initiated by the school itself. Furthermore, like Perovy, the case of Dahlab stressed the importance of the exemplary role of the teacher, whilst Lautsi focused on the school authorities as a whole.
In addition, stressing the commonalities between Lautsi and Dahlab underlines why the Court should have referred to both cases in its decision. After all, the pupils in both Lautsi and Dahlab were able to take on a passive stance towards the systematical presence of religious references – be it the placement of crucifixes in classrooms or a teacher wearing a headscarf – while the event in Perovy is in itself considered to be isolated and concerns the active presence of a pupil at a religious ceremony. Furthermore, whilst the son of Ms. Perova and Mr. Perov was alone in his deviating religious convictions at the time of the rite, the children in Lautsi and Dahlab were not subjected to the religious symbols alone: a circumstance that can make a substantive difference in the experience of young children.
So, having a closer look at the Court’s reasoning, its argument for disregarding Dahlab whilst referring to Lautsi in this case is conspicuous by its absence. This is especially relevant when we consider the Court’s aforementioned rule, as established in Lautsi itself, and apply it to the current case. After all, a comparison of Perovy to both Lautsi and Dahlab does not necessarily lead to the conclusion that the facts in these cases are “entirely different”. On the contrary, one might argue that Perovy has at least as much in common with Dahlab as it has with Lautsi. Should the Court have paid the same attention to the boy’s young age as it did in Dahlab, then Ms. Perova and Mr. Perov would have been provided with a more sufficiently substantiated decision. In its current form however, the reasoning of the Court leaves us with the question if the judges have put aside the apples and oranges and decided to pick the cherries instead.
“Let’s not exaggerate what went on.”
In their dissenting opinion, three judges agreed with the statement that the Court bypassed Dahlab far too easily and that it, in doing so, unduly ignored the boy’s young age. They stated that “[the boy] was only seven years old at the time of the rite” and that “[a]t that age, he could easily be influenced.” The judges added, among other aspects, that the boy “had not yet acquired the necessary experience to identify the rite as exceptional” and that the rite took on a “particularly active dimension”, referring to the distribution of paper icons by the priest, that were meant to be taken home by the children.
But the other four judges were not sensitive to these circumstances and felt no need to extensively communicate their reasons to disregard Dahlab. If anything, it almost seems as if they found that Ms. Perovy and Mr. Perov should not have brought the case before the Court at all. They did however, make the rather unusual decision to elaborate on this view in a joint concurring opinion, which stated that “one should not exaggerate what went on.” They added that the current case is a case “about an error of judgment” that 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.”
And one must agree with the Court’s argument that the domestic authorities have responded appropriately, as they swiftly ordered disciplinary proceedings and sanctions. After all, this ultimately leads to the outcome that the state must be seen as having fulfilled its positive obligations under Article 2 of the Protocol and Article 9 of the Convention. So, since the Court could have settled the case with this argument, it is even more peculiar that it did, nevertheless, decide to go into the substance of the case and then does so in an insufficient manner by passing by the boy’s age. The Court’s decision to go into the substance of the case was probably made with the best intentions, but it has a perverse effect due to its incompleteness. Because the way the Court responded to the dissenting judges can, considering how it disregarded Dahlab, be interpreted as if it just gave a fierce stroke of its hammer, followed by “now get out of my court room.”
Perovy is a good example of how the educational sphere can be the scene of a legal conflict concerning the right to freedom of religion, which is then to be solved before the Court. In this case however, it is hard to ignore the idea that the Court decided to lecture its dissenting judges, as well as the parents who lodged the complaint, while at the same time the Court itself failed to sufficiently substantiate its decision to disregard the boy’s age. And indeed, the fact that four out of seven judges slapped two parents on the wrists who brought a case before the Court that – according to the judges – involved no more than a minor disagreement between parents and a local school, was not appreciated by three others. In my humble opinion and for the reasons mentioned above, the Court should have also taken the boy’s age into account in its reasoning as soon as it decided to not simply pass by the substance of the case.
 Macron vows to continue ‘fight for freedom’ as France pays tribute to beheaded teacher Samuel Paty. (October 22, 2020). Euronews, via https://www.euronews.com/2020/10/21/macron-vows-to-continue-fight-for-freedom-as-france-pays-tribute-to-beheaded-teacher-samue