Spanish case

Spanish case: General right to objection of conscience in constitutional states.

1.Facts

In 2006, with Real Decreto 1631, the Spanish Government has introduced in every level of the educational system a new subject, “education for citizenship”, following some general directions coming from EU. The form in which that subject was interpreted and organized has produced an important public debate and the reaction from a part of the political community against it for suspecting an occulted ideological imposition.
In February 2009, the Supreme Court has examined four appeals, two coming from parents, two coming from the regional boards in education, against four different judicial decisions of the autonomic courts (tribunales superiores de justicia de las comunidades autonómicas) regarding the question of the existence of a right to objection of conscience for parents against that subject of teaching. Two of the decisions recognized the right to object against the teaching of that subject, and two stated that the right does not exist.
The applicants have argued their position on the grounds of articles 16.1 and 27.3 Spanish Constitution. Their thesis is that a general right to objection of conscience exists in the constitutional State and that that right must be establish by judicial power case by case.
The Supreme Court has decided that such a right does not exist, even though arts. 16.1 and 27.3 Spanish Constitution imply a strong limitation for the educational activity of the State and the requirement that that teaching would be proposed with “neutrality”. The Supreme Court has established that the right to objection of conscience must be recognized by a statute, interpreting in that way also the art. 10.2 of the Charter of Fundamental Rights EU.

2.Legal framework

European Convention – Human Rights
CHARTER OF FUNDAMENTAL RIGHTS
OF THE EUROPEAN UNION

Article 10
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom
to change religion or belief and freedom, either alone or in community with others and in public or in
private, to manifest religion or belief, in worship, teaching, practice and observance.
2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

Spanish Constitution
Article 16
1. Freedom of ideology, religion and worship of individuals and communities is
guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law.
2. No one may be compelled to make statements regarding his or her ideology,
religion or beliefs.
3. No religion shall have a state character. The public authorities shall take into
account the religious beliefs of Spanish society and shall consequently maintain appropriate cooperation relations with the Catholic Church and other confessions.

Article 27
1. Everyone has the right to education. Freedom of teaching is recognized.
2. Education shall aim at the full development of human personality with due
respect for the democratic principles of coexistence and for basic rights and freedoms.
3. The public authorities guarantee the right of parents to ensure that their children
receive religious and moral instruction in accordance with their own convictions.
4. Elementary education is compulsory and free.
5. The public authorities guarantee the right of all to education, through general
education programming, with the effective participation of all sectors concerned and the
setting-up of educational centres.
6. The right of individuals and legal entities to set up educational centres is
recognized, provided they respect constitutional principles.
7. Teachers, parents and, when appropriate, pupils shall participate in the control
and management of all centres supported by the Administration out of public funds, under
the terms established by the law.
8. The public authorities shall inspect and standardize the educational system in
order to ensure compliance with the laws.
9. The public authorities shall help the educational centres which meet the
requirements established by the law.
10. The autonomy of Universities is recognized, under the terms established by the
law.
3. Comments
Apart from the specific circumstances of the cases and apart from the differences of legal systems with or without specialized courts for administrative affairs, the interesting point is the relevance of judiciary in determining fundamental rights of individuals in the space for disagreement that the consent on vague constitutional values necessarily leaves to the decision of majorities.
4. References
Appeal 905/2008; 948/2008; 1013/2008 in http://www.poderjudicial.es/
See also “Diritto & Questioni Pubbliche”, issue 9/2009
http://www.dirittoequestionipubbliche.org/