Search

Revista Studii Teologice

REVISTA FACULTĂŢILOR DE TEOLOGIE DIN PATRIARHIA ROMÂNĂ



JA slide show
 

Cât de diferite sunt modelele naționale privind studiul religiei în Europa? Cadrul normativ, perspectiva comparată și jurisprudența curții constituționale

How different are the National Models on the Study of Religions (SR) in Europe? The legal framework, the comparative perspective and the jurisprudence of the Constitutional Court

Autor(i): Radu CARP


The first part of the article is dedicated to the SR according to the Council of Europe perspective. There are two recommendations of the Council of Europe Com-mittee of Ministers concerningthe SR: Recommendation no. 170 (2005) on Intercul-tural and inter-faith dialogue: initiatives and responsibilities of local authorities and Recommendation no. 1804 (2007) on State, religion, secularity and human rights. Education in general is defined by the European Court on Human Rights (the Court) as “the whole process whereby, in any society, adults endeavor to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development” (Campbell and Cosans v. the United Kingdom). Article 2 of Protocol no. 1 of the European Convention on Human Rights refers explicitly to the SR. The Court refer-red on many occasions to this norm and to establish a framework for the SR. For instance, sex education (Kjeldsen, Busk Madsen and Pedersen v. Denmark) or com-pulsory ethics classes (Appel-Irrgang v. Germany) that offended parents’ religious sentiments. The Court examined the religious teaching based on a Sunni interpreta-tion of Islam clashing with religious convictions of parents belonging to Alevi faith (Hasan and Eylem Zengin v. Turkey) and the religious teaching of Christianity clas-hing with philosophical convictions of non-Christian parents (Folgerø and Others v. Norway). It follows from all these cases that the State must ensure that information or knowledge included in the curriculum provided by the educational system is con-veyed in an objective and pluralistic manner. If this does not happen, the State shall grant children exemption from the classes in accordance with the parents’ religious or philosophical convictions (Folgerø and Others v. Norway), but Article 2 of Protocol no. 1 does not oblige the State to provide Ethics classes in case of exemption (Grzelak v. Poland). The most recent case where Article 2 of Protocol no. 1 was discussed by the ECHR is Lautsi v. Italy.
The second part of the article is dedicated to the SR from the EU perspective. EU Member states have the exclusive competence to organize their own national systems of education. The EU may act in support of the Member States in the area of education, but these actions are in the form of recommendations, without any man-datory character. Common statements of the ministries of education (as the Bologna Declaration) may be issued or strategies that consider also the education dimension could be drafted (as the Europa 2020) but these documents do not have legal effects and they do not impose obligations that could lead to sanctions, if not respected. SR is therefore a part of the EU Member States sovereignty; there are no EU competen-ces on this matter. According to the Treaty on the functioning of the European Uni-on, as changed by the Treaty of Lisbon, the EU has competence to carry out actions to support, coordinate, or supplement the actions of the Member States in the area of education (Article 6). Education is not among the areas where the EU has an exclusi-ve competence or the competences are shared with the Member States. Another reference to education is Article 165, paragraph 1 of the same Treaty. EU Member states have the exclusive competence to organize their own national systems of edu-cation. The EU may take actions to support the Member States in the area of educa-tion, but these actions are in the form of recommendations, without any mandatory character. Common statements of the ministries of education (as the Bologna Decla-ration) may be issued or strategies that consider also the education dimension could be drafted (as the Europa 2020) but these documents do not have legal effects and they do not impose obligations that could lead to sanctions, if not respected. SR is therefore a part of the EU Member States sovereignty; there are no EU competences on this matter. There is no SR European model. There are only some categories that circumscribe national models that are very similar and even identical.
The third part of the article analyzes SR in public, private and confessional schools from EU Member States. There are 6 categories: 1) SR confessional, manda-tory study discipline (Austria, Belgium, Cyprus, Germany, Greece, Finland, Ireland, Malta, Romania); 2) SR non-confessional, mandatory study discipline (Denmark, Sweden); 3) SR confessional, optional study discipline (Bulgaria, The Czech Republic, Croatia, Hungary, Italy, Latvia, Lithuania, Luxembourg, Poland, Portugal, Slovakia, Spain); 4) SR non-confessional, optional study discipline (Estonia, Slovenia); 5) SR confessional / non-confessional, optional / mandatory study discipline (The Nether-lands, United Kingdom); 6) SR non-confessional, as part of other study disciplines (France).
A relevant question is why there are 6 categories where countries with com-mon characteristics are included and not as many as the EU Member States or a single model of SR. The current regulation of SR in Europe illustrates very well the model of “natural convergence” (as opposed to “artificial convergence”, a process generated by the belonging of some States to a supra-national organization, i.e. Eu-ropean Union) or “original convergence” (as opposed to the “ongoing convergence”, as a result of European Union or Council of Europe influence that leads inevitably to the emergence of a jus commune in Europe) of legal systems. The common features of some national legal systems on SR are due to historical circumstances closely con-nected with the development of State-Church models in Europe. There is a close connection between the State-Church cooperation model and the statute of SR as a confessional, mandatory study discipline, while there is a clear connection between the State-Church complete separation model and the statute of SR as non-confessional, part of other study disciplines. Obviously, these connections do not lead to a complete superposition of a specific State-Church model with a certain category of SR, but nevertheless they are the result of the same historical circumstances that have led to similar legal developments.
The fourth part of the article concerns the status of SR in Romania. The legal framework of SR from 1990 up to now is presented and also the relevant jurispru-dence of the Constitutional Court that discussed the issue of SR three times. Special interest is attached to the most recent case involving SR, the Decision no. 669 / 2014. This decision generated a public debate where both religions and civil society were actively engaged. The conclusion is that the Constitutional Court denied its own jurisprudence related to the status of SR in 2014, but in fact it did not recommend a radical change of it. The fact that it did not explain enough why it departed from its own previous interpretations was the reason for a rapid mobilization of the religions, especially ROC and the civil society (mainly APOR and ASLC, the first in favor and the second against SR). The discussion about what could be the content of the norm that will transpose the decision of the Constitutional Court turned into a debate about the opportunity of the SR in schools in general. It was a public debate that had been avoided when the SR was reintroduced in schools at the beginning of the 1990s but it was inevitable after almost 25 years of SR being part of the curricula, in the context of slow but constantly increasing secularization and diminished levels of trust in ROC. In fact, the introduction of SR in public schools after the fall of Communism was a decision of educational policy, agreed by the State and by the religions. It was not accompanied by a strategy and by complementary measures taking into account its particular statute – a study discipline that is neither mandatory, nor optional, as other study disciplines. The result was a continuous controversy related to its role in the curricula, the content of the manuals, teachers etc. In particular, the issue of SR teachers is extremely sensitive and religions have been trying to find solutions to it since the introduction of SR as a study discipline in the public schools. It was very hard to overcome the lack of qualified teachers of SR at the beginning of the 1990s. The current number of SR teachers is the result of establishing special types of trai-ning SR teachers in the theological higher education, but there are still a significant number of people belonging to the clergy that teach and have ecclesiastical activities in the same time. The rapid growth of theological higher education did not contribute to a better training and professionalization of SR teachers. The recent developments have convinced all the parties involved – State authorities, religions, civil society – that there is a need to discuss all these issues with a more profound approach. All sides favored the debate that started with the latest decision of the Constitutional Court on SR. This debate was unanimously considered to be a basis for future legiti-mation grounds. The result of the application forms for SR was a surprise for the religions but also for the opponents of SR. It seems that the parents were not very much influenced by the public debate, but rather they agree with SR as it is taught in particular schools and high-schools. This public debate shows that it is possible to have two new kinds of mobilization that were underestimated by ROC: the rallying of all religions for a common purpose and the efficient involvement of that part of the civil society close to the Church. The new legal form of the SR is quite paradoxical: SR is part of the common core and this is an argument to its being considered as a mandatory study discipline, but the parents / students / tutors shall express their will if they want SR to be taught and this is an argument to be considered as an optional study discipline. In our opinion, being or not being part of the common core of the curricula is essential for a study discipline to be considered as part of the mandatory study disciplines. If this interpretation is accepted, the status of SR in Romania has not been modified by the recent changes of the legal framework. There-fore, Romania is still in the category of European countries with SR confessional, mandatory study discipline with the opt-out possibility.

Taguri:
Studiu
Pagini: 35-62