ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 07.12.1976"КЬЕЛДСЕН (kjeldsen), БУСК МАДСЕН (busk madsen) И ПЕДЕРСЕН (pedersen) ПРОТИВ ДАНИИ" [рус. (извлечение), англ.]

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 ({Modrehjaelpsinstitutionernes} 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 ({Bekendtgorelse} 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 ({Bekendtgorelse} 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,

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