The HFHR concludes that such a change is very likely unconstitutional, as it arguably violates the freedom of conscience and religion, parents’ right to bring up a child according to their conscience and the prohibition of discrimination.
The key aspect of the problem is whether, in the context of the applicable law and practice, a religion teacher can take on the position of a form teacher who is supposed to present a neutral worldview and ensure that students are treated equally whether or not they attend religious education courses.
Canonical mission vs. world-view neutrality
Under the current law, church or religious association authorities decide who is appointed to teach religion at schools; school administrators have no option but to accept such appointments. This means that religious educators are much more subordinated to church authorities than they are to state education authorities.
In the case of the Roman Catholic Church, religion teachers are bound by a canonical mission assigned by a diocese bishop, who is the only person authorized to terminate the mission. The bishop also assesses their lives and conduct outside the classroom.
"In our experience, there are actual instances of canonical missions being terminated for reasons related to the private life of a given person. The proof of that is the case we are handling, which involves a female religion educator whose mission – and employment – was terminated because she got pregnant while staying single," said Agnieszka Mikulska-Jolles, an expert with the HFHR.
The above information suggests that those teachers of religious education who may assume the role of form teachers will perform this role relying on the guidelines and doctrine of the Roman Catholic Church.
Consequently, the appointment of a person subordinated to the doctrine and institution of one church as a form teacher may lead to violations of the freedom of conscience and religion that is afforded to persons without religious affiliation or followers of other religions.
Against the above background, it is necessary to emphasize the fact that neither parents nor of-age students have any impact on the choice of a form teacher, while they can decide on whether or not attend religious education classes.
In the opinion of the Helsinki Foundation for Human Rights, those parts of the proposed regulation that enable religion teachers taking on the role of form teachers are very likely unconstitutional.
In particular, they arguably violate the freedom of conscience and religion (Article 53), parents’ right to bring up a child according to their conscience (Article 49) and the principle of worldview neutrality of the state (Article 25). The proposed measures are equally likely to result in unequal treatment of students of common schools (Article 70 of the Constitution, read in conjunction with Article 32).
Because of the dubious constitutionality of the law, the Helsinki Foundation for Human Rights calls for discontinuing any further legislative work on the proposed amendments.