the latter did not delegate the task of certifying the suitability of teachers of denominational religion.
In fact, it pointed out there is no attribution of public authority because the religious suitability of
teachers of denominational religion is not a mandate of the State and that, on the contrary, it is a
power vested in the religious communities or their authorities.
113. In this regard, the Court recalls, first of all, that Article 12(4) of the American Convention does
not stipulate that religious authorities have the exclusive and inherent power to select religious
education teachers or to determine their suitability. Said article only mentions that parents or
guardians, as the case may be, have the right to ensure that their children or wards receive the
religious and moral education that is in accordance with their own convictions.
114. Furthermore, as mentioned above, the possibility that the religious authorities may select
teachers of religious education to teach their own doctrine, is one of the ways in which the right
contained in Article 12(4) - namely the right of parents or guardians to have their children or wards,
as the case may be, receive the religious and moral education that is consistent with their own
convictions – can be realized. However, this is not the only means to do so and, depending on the
domestic legislation of each State, this right can be realized in other ways. 156
115. Accordingly, the possibility that religious institutions have to determine the suitability of
religious education teachers, far from constituting an inherent power contemplated in international
law, depends on the domestic legal system established by each State. Thus, under Chilean domestic
law, and specifically Decree 924, Chile’s religious authorities have the ability to issue certificates of
suitability that qualify teachers of religious education teachers to teach their doctrine. However, as
the expert witness Carozza points out, this is a consequence of the constitutional model of that
country, and not an inherent power or one that would derive from freedom of religion. Therefore, it is
the Chilean domestic regulations that delegated to third parties - in this case to the religious
authorities - the power to issue certificates of suitability. Moreover, as noted previously, the certificate
of suitability is necessary to teach religious education classes in public educational establishments
and, therefore, to be a teacher in a public school.
116. Consequently, based on the foregoing, this Court understands that Decree 924 conferred
attributes of public power upon the religious authorities, and therefore, when issuing the certificate of
suitability to religious education teachers, they exercise an act that is directly attributable to the State.
117. Regarding the attribution of responsibility for a breach of the duty to guarantee, this Court
understands that this may also be based on the actions of the judiciary in charge of hearing appeals
related to the revocation of the certificate of suitability (infra chapter VII).
b) The selection of religious education teachers by the religious authorities and the autonomous
nature of their decisions
118. According to the State, the certificate of suitability required by Decree 924 to teach religious
education classes is a guarantee of the autonomy of religious entities to carry out their fundamental
activities, including the selection of their teachers. It added that the requirement of this particular
qualification for the specific function of representing the religious community through teaching
religion, guarantees that it will be faithfully taught by the person who, in fact represents that faith
community, according to its criteria. Likewise, the State affirmed that it is compelled “by respect for
the autonomy of religious entities to recognize and not question the decision taken, when faced with
156
On this point, it should be recalled that Paolo Carozza, the expert witness proposed by the State, indicated that with
regard to the right to receive religious education in accordance with the convictions of the parents, “the various legal systems
and legal traditions of the States in the inter-American sphere offer very different constitutional models in terms of the
relationship between religion and the State […] which will necessarily have an impact on how the State would fulfill its obligations
under Article 12(4) […] in some States such as Peru or Chile, it could mean the active provision of religious instruction in public
schools, while in others, such as Mexico or the United States, it would be constitutionally unacceptable and the obligation of
the State should be understood as having a rather indirect and passive content. However, despite reasonable differences on
the question of how [to comply] the State must fulfill its affirmative obligations under the ACHR 12(4).” Statement of Paolo
Carozza rendered by affidavit (evidence file, folio 873).
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