Chbihi Loudoudi and Others v. Belgium concerned the procedure in Belgium for the adoption by the applicants of their Moroccan niece, who had been entrusted to their care by “kafala”1. The applicants complained in particular of the Belgian authorities’ refusal to recognise the kafala agreement and approve the adoption of their niece, to the detriment of the child’s best interests, and of the uncertain nature of her residence status. The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention concerning the refusal to grant the adoption, and no violation of Article 8 (right to respect for private and family life) concerning the child’s residence status.
Zaieţ v. Romania concerned the annulment of a woman’s adoption, at the instigation of her adoptive sister, 31 years after it had been approved and 18 years after the death of their adoptive mother. This was the first occasion on which the Court had to consider the annulment of an adoption order in a context where the adoptive parent was dead and the adopted child had long reached adulthood. In the applicant’s case, the Court, finding that the annulment decision was vague and lacking in justification for the taking of such a radical measure, concluded that the interference in her family life had not been supported by relevant and sufficient reasons, in violation of Article 8 (right to respect for private and family life) of the Convention. The Court noted in particular that, in any event, the annulment of an adoption should not even be envisaged as a measure against an adopted child and underlined that in legal provisions and decisions on adoption matters, the interests of the child had to remain paramount.
Mennesson and Others v. France and Labassee v. France concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment. The applicants complained in particular of the fact that, to the detriment of the children’s best interests, they were unable to obtain recognition in France of parent-child relationships that had been legally established abroad. It further held in both cases that there had been a violation of Article 8 concerning the children’s right to respect for their private life.
The Court further noted that the case-law completely precluded the establishment of a legal relationship between children born as a result of – lawful – surrogacy treatment abroad and their biological father. This overstepped the wide margin of appreciation left to States in the sphere of decisions relating to surrogacy.
Paradiso and Campanelli v. Italy 2017 (Grand Chamber) This case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into with a Russian woman by an Italian couple (the applicants); it subsequently transpired that they had no biological relationship with the child. The applicants complained, in particular, about the child’s removal from them, and about the refusal to acknowledge the parent-child relationship established abroad by registering the child’s birth certificate in Italy.
The Grand Chamber found, by eleven votes to six, that there had been no violation of Article 8 (right to respect for private and family life) of the Convention in the applicants’ case. Having regard to the absence of any biological tie between the child and the applicants, the short duration of their relationship with the child and the uncertainty of the ties between them from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Grand Chamber held that a family life did not exist between the applicants and the child. It found, however, that the contested measures fell within the scope of the applicants’ private life.
The Grand Chamber further considered that the contested measures had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. On this last point, it regarded as legitimate the Italian authorities’ wish to reaffirm the State’s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological tie or lawful adoption – with a view to protecting children. The Grand Chamber also accepted that the Italian courts, having concluded in particular that the child would not suffer grave or irreparable harm as a result of the separation, had struck a fair balance between the different interests at stake, while remaining within the room for manoeuvre (“margin of appreciation”) available to them.
Advisory opinion concerning the recognition in domestic law of a legal parent- child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, requested by the French Court of Cassation (Request No. P16-2018-001) This case concerned the possibility of recognition in domestic law of a legal parent-child relationship between a child born abroad through a gestational surrogacy arrangement and the intended mother, designated in the birth certificate legally established abroad as the “legal mother”, in a situation where the child was conceived using the eggs of a third-party donor and where the legal parent-child relationship with the intended father has been recognised in domestic law.
The Court found that States were not required to register the details of the birth certificate of a child born through gestational surrogacy abroad in order to establish the legal parent-child relationship with the intended mother, as adoption may also serve as a means of recognising that relationship. It held in particular that, in a situation where a child was born abroad through a gestational surrogacy arrangement and was conceived using the gametes of the intended father and a third-party donor, and where the legal parent-child relationship with the intended father has been recognised in domestic law, the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”; the child’s right to respect for private life does not require such recognition to take the form of entry in the register of births, marriages and deaths of the details of the birth certificate legally established abroad; another means, such as adoption of the child by the intended mother, may be used.
D v. France concerned the refusal to record in the French register of births, marriages and deaths the details of the birth certificate of a child born abroad through a gestational surrogacy arrangement in so far as the certificate designated the intended mother, who was also the child’s genetic mother, as the mother. The Court held that there had been no violation of Article 8 (right to respect for family life) of the Convention, finding that, in refusing to record the details of the third applicant’s Ukrainian birth certificate in the French register of births in so far as it designated the first applicant as the child’s mother, France had not overstepped its margin of appreciation in the circumstances of the present case. It also held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention read in conjunction with Article 8, accepting that the difference in treatment of which the applicants complained with regard to the means of recognition of the legal relationship between such children and their genetic mother had an objective and reasonable justification.
Valdís Fjölnisdóttir and Others v. Iceland concerned the non-recognition of a parental link between the first two applicants and the third applicant, who was born to them via a surrogate mother in the United States. The first and second applicants were the third applicant’s intended parents, but neither of them was biologically related to him. They had not been recognised as the child’s parents in Iceland, where surrogacy is illegal. The Court held that there had been no violation of Article 8 (right to respect for family life) of the Convention. It considered, in particular, that despite the lack of a biological link between the applicants, there had been “family life” in the applicants’ relationship. However, the Court found that the decision not to recognise the first two applicants as the child’s parents had had a sufficient basis in domestic law and, taking note of the efforts on the parts of the authorities to maintain that “family life”, ultimately adjudged that Iceland had acted within its discretion in the present case.
S.-H. v. Poland The parents of the applicants – twin brothers who were dual Israeli and United States nationals and lived in Israel– were a same-sex couple, who in 2010 had the children conceived via a surrogacy agreement. The applicants were confirmed as children of their parents by the Superior Court of California. The case concerned their application for Polish citizenship (one of their parents was a Polish national). They complained in particular of the refusal by the Polish authorities to recognise their relationship with their biological father, which they alleged had been because their parents were a same-sex couple.
The Court declared the applications inadmissible, finding that there was no factual basis for concluding that there had been an interference with the right to respect for private and family life in the present case. While it acknowledged, in particular, that the applicants would not have Polish and European citizenship as a result of those decisions, it pointed out that they would still enjoy free movement in Europe. For the Court, they had not put forward any claims of hardship they had suffered as a result of the decisions, either before the Court or the domestic authorities. In particular, the parent- child link in this case, although not recognised by the Polish authorities, was recognised in the State where the applicants resided. Legal recognition in the United States had meant that the applicants had not been left in a legal vacuum both as to their citizenship and as to the recognition of the legal parent-child relationship with their biological father.
A.L. v. France concerned the compatibility with the right to respect for private life of the domestic courts’ refusal to legally establish the applicant’s paternity vis-à-vis his biological son – who had been born in the framework of a gestational surrogacy contract in France – after the surrogate mother had entrusted the child to a third couple. The applicant submitted that the dismissal of his application to establish his paternity in respect of his biological son amounted to a disproportionate interference with his right to respect for his private life, lacking any legal basis.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, on account of the French State’s failure to honour its duty of exceptional diligence in the particular circumstances of the case. In balancing the applicant’s right to respect for his private life, on the one hand, with his son’s right to respect for his private and family life, which required compliance with the principle of prioritising the child’s best interests, the Court considered that the grounds set out by the domestic courts to justify the impugned interference had been relevant and sufficient for the purposes of Article 8 § 2 of the Convention. Nevertheless, the Court noted that the proceedings had taken a total of six years and about one month, which was incompatible with the requisite duty of exceptional diligence. The child had been about four months old when the case had gone to court, and six-and-a-half years old when the domestic proceedings had ended. In cases involving a relationship between a person and his or her child, the lapse of a considerable amount of time could lead to the legal issue being determined on the basis of a fait accompli.
D.B. and Others v. Switzerland concerned a same-sex couple who were registered partners and had entered into a gestational surrogacy contract in the United States under which the third applicant had been born. The applicants complained in particular that the Swiss authorities had refused to recognise the parent child relationship established by a US court between the intended father (the first applicant) and the child born through surrogacy (the third applicant). The Swiss authorities had recognised the parent child relationship between the genetic father (the second applicant) and the child.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention in respect of the applicant child and no violation of Article 8 (right to respect for family life) in respect of the intended father and the genetic father. Regarding the child, it noted in particular that, at the time he was born, domestic law had afforded the applicants no possibility of recognition of the parent-child relationship between the intended parent and the child. Adoption had been open to married couples only, to the exclusion of those in registered partnerships. Not until 1 January 2018 had it become possible to adopt the child of a registered partner. Thus, for nearly seven years and eight months, the applicants had had no possibility of securing definitive recognition of the parent child relationship.
The Court therefore held that for the Swiss authorities to withhold recognition of the lawfully issued foreign birth certificate in so far as it concerned the parent-child relationship between the intended father and the child born through surrogacy in the United States, without providing for alternative means of recognising that relationship, had not been in the best interests of the child. In other words the general and absolute impossibility, for a significant period of time, of obtaining recognition of the relationship between the child and the first applicant had amounted to a disproportionate interference with the third applicant’s right to respect for private life. Switzerland had therefore overstepped its margin of appreciation by not making timely legislative provision for such a possibility
K.K. and Others v. Denmark (no. 25212/21) concerned the refusal to allow the first applicant to adopt the two other applicants, who were twins, as a “stepmother” in Denmark. The twins were born to a surrogate mother in Ukraine who had been paid for her service under a contract concluded with the first applicant and her partner, the biological father of the children. Under Danish law, adoption was not permitted in cases where payment had been made to the person who had to consent to the adoption.
The Court held that in the present case there had been no violation of Article 8 (right to respect for family life) of the Convention, finding that there had been no damage to the family life of the applicants, who lived together with the children’s father unproblematically. It also held that there had been no violation of Article 8 (right to respect for private life) of the Convention as regards the mother’s right to respect for her private life as the domestic authorities had been correct in ruling so, in order to protect the public interest in controlling paid surrogacy, over the first applicant’s right to respect for private life. The Court held, however, that there had been a violation of Article 8 as regards the right to respect for the private lives of the two applicant children, finding that the Danish authorities had failed to strike a balance between their interests and the societal interests in limiting the negative effects of commercial surrogacy, in particular as regards their legal situation and legal relationship to the first applicant.
R.B. v. Estonia 2021 concerned the failure to conduct an effective criminal investigation into the applicant’s allegations of sexual abuse by her father. The applicant was about four and a half years old at the relevant time. Her complaint concerned procedural deficiencies in the criminal proceedings as a whole, including the failure of the investigator to inform her of her procedural rights and duties, and the reaction of the Supreme Court to that failure resulting in the exclusion of her testimony and the acquittal of her father on procedural grounds.
The Court held that there had been significant flaws in the domestic authorities’ procedural response to the applicant’s allegation of rape and sexual abuse by her father, which had not sufficiently taken into account her particular vulnerability and corresponding needs as a young child so as to afford her effective protection as the alleged victim of sexual crimes. Accordingly, without expressing an opinion on the guilt of the accused, the Court concluded that the manner in which the criminal-law mechanisms as a whole had been implemented in the present case, resulting in the disposal of the case on procedural grounds, had been defective to the point of constituting a violation of the respondent State’s positive obligations under Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life) of the Convention.
Compulsory childhood vaccination
Vavřička and Others v. Czech Republic 2021 (Grand Chamber) concerned the Czech legislation on compulsory vaccination5 and its consequences for the applicants who refused to comply with it. The first applicant had been fined for failure to comply with the vaccination duty in relation to his two children. The other applicants had all been denied admission to nursery school for the same reason. The applicants all alleged, in particular, that the various consequences for them of non-compliance with the statutory duty of vaccination had been incompatible with their right to respect for their private life.
The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention in the present case, finding that the measures complained of by the applicants, assessed in the context of the national system, had been in a reasonable relationship of proportionality to the legitimate aims pursued by the respondent State (to protect against diseases which could pose a serious risk to health) through the vaccination duty. The Court clarified that, ultimately, the issue to be determined was not whether a different, less prescriptive policy might have been adopted, as had been done in some other European States.
Rather, it was whether, in striking the particular balance that they did, the Czech authorities had exceeded their wide margin of appreciation in this area. The Court concluded that the impugned measures could be regarded as being “necessary in a democratic society”. The Court noted, in particular, that in the Czech Republic the vaccination duty was strongly supported by the relevant medical authorities. It could be said to represent the national authorities’ answer to the pressing social need to protect individual and public health against the diseases in question and to guard against any downward trend in the rate of vaccination among children. The judgment also emphasised that in all decisions concerning children, their best interests must be of paramount importance. With regard to immunisation, the objective had to be that every child was protected against serious diseases, through vaccination or by virtue of herd immunity. The Czech health policy could therefore be said to be consistent with the best interests of the children who were its focus. The Court further noted that the vaccination duty concerned nine diseases against which vaccination was considered effective and safe by the scientific community, as was the tenth vaccination, which was given to children with particular health indications.
Family Reunification Rights
Sen v. the Netherlands The applicants are a couple of Turkish nationals and their daughter, who had been born in Turkey in 1983 and who her mother left in her aunt’s custody when she joined her husband in the Netherlands in 1986. The parents complained of an infringement of their right to respect for their family life, on account of the rejection of their application for a residence permit for their daughter, a decision which prevented her from joining them in the Netherlands. They had two other children, who were born in 1990 and 1994 respectively in the Netherlands and have always lived there with their parents.
Being required to determine whether the Dutch authorities had a positive obligation to authorise the third applicant to live with her parents in the Netherlands, having regard, among other things, to her young age when the application was made, the Court noted that she had spent her whole life in Turkey and had strong links with the linguistic and cultural environment of her country in which she still had relatives. However, there was a major obstacle to the rest of the family’s return to Turkey. The first two applicants had settled as a couple in the Netherlands, where they had been legally resident for many years, and two of their three children had always lived in the Netherlands and went to school there. Concluding that the Netherlands had failed to strike a fair balance between the applicants’ interest and their own interest in controlling immigration, the Court held that there had been a violation of Article 8 (right to respect for family life) of the Convention.
Mugenzi v. France, Tanda-Muzinga v. France and Senigo Longue and Others v. France concerned the difficulties encountered by the applicants – who were either granted refugee status or lawfully residing in France – in obtaining visas for their children so that their families could be reunited. The Court observed in particular that the procedure for examining applications for family reunification had to contain a number of elements, having regard to the applicants’ refugee status on the one hand and the best interests of the children on the other, so that their interests as guaranteed by Article 8 (right to respect for private and family life) of the Convention from the point of view of procedural requirements were safeguarded. In all three cases, the Court held that there had been a violation of Article 8 of the Convention.
Parental authority, child custody and access rights
N.Ts.v. Georgia concerned proceedings for the return of three young boys – who had been living with their maternal family since their mother’s death – to their father. The first applicant maintained in particular that the national authorities had failed to thoroughly assess the best interests of her nephews and that the proceedings had been procedurally flawed.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the boys had not been adequately represented before the domestic courts, in particular as the functions and powers of the domestic authority designated to represent them had not been clearly defined and the courts had not considered hearing the oldest of the boys in person. Moreover, the courts had made an inadequate assessment of the boys’ best interests, which did not take their emotional state of mind into consideration.
V.D. and Others v. Russia concerned a child, who was cared for by a foster mother, the first applicant in the case, for nine years and was then returned to his biological parents. The foster mother and her remaining children complained about the Russian courts’ decisions to return the child to his parents, to terminate the first applicant’s guardianship rights and to deny them all access to the child.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention owing to the order by the domestic courts to remove the child from his foster mother and return him to his biological parents and a violation of Article 8 of the Convention because of the decision to deny the foster family any subsequent contact with the child. formed close ties with the first applicant and her remaining children. In this regard, the Court noted that the courts’ decision had been based solely on an application of Russia’s legislation on contact rights, which was inflexible and did not take account of varying family situations. The domestic courts had therefore not carried out the required assessment of the individual circumstances of the case.
Right to know one’s origins
Mandet v. France concerned the quashing of the formal recognition of paternity made by the mother’s husband at the request of the child’s biological father. The applicants – the mother, her husband and the child – complained about the quashing of the recognition of paternity and about the annulation of the child’s legitimation. The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It noted in particular that the reasoning in the French courts’ decisions showed that the child’s best interests had been duly placed at the heart of their considerations.
Lavanchy v. Switzerland concerned the Swiss courts’ refusal to allow an exception to the time-limit laid down by domestic law (one year from the date of reaching the age of majority) for bringing an action to establish a legal parent-child relationship, and the consequent dismissal of the applicant’s action seeking to have the relationship with her biological father recorded in the civil-status register. The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the delay on the applicant’s part in bringing proceedings to establish a legal parent-child relationship, as noted by the domestic courts, could not be regarded as justifiable for the purposes of the Court’s case-law. Hence, the Swiss courts had not failed in their obligation to strike a fair balance between the interests at stake. The Court noted, in particular, that the Swiss courts’ decisions had been carefully reasoned, taking the Court’s case-law into account.
In particular, the courts had identified several points during the applicant’s life when she could have consulted the details concerning her parentage in the civil-status register and sought information about the steps to be taken, even after expiry of the time-limit. Those considerations led the courts to conclude that there had been no justification for the applicant’s inactivity over a 31-year period.
Paparrigopoulos v. Greece concerned proceedings for the judicial determination of paternity of the applicant’s daughter. The applicant alleged in particular that domestic law had not afforded him the opportunity to acknowledge paternity voluntarily and that this had had the consequence of limiting his parental responsibility in respect of his daughter. He submitted that parental responsibility was “full” only where paternity was voluntarily acknowledged and that a judicial determination, to which he had objected, would not enable him to exercise any parental responsibility unless both parents so agreed. As to the discrimination alleged, the Court held that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the Convention, finding that there was no reasonable relationship of proportionality between the preclusion of the applicant’s exercise of parental responsibility and the aim pursued, which had been to protect the best interests of children born out of wedlock.
The Court also held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in the present case. In this respect, it noted in particular that the proceedings had spanned nine years and four months and that the arguments put forward by the Government could not account for such a delay. Having regard to the positive obligation to exercise exceptional diligence in such cases, the Court found that the lapse of time could not be regarded as reasonable.
Scalzo v. Italycase concerned the applicant’s inability to bring an action to establish paternity on the part of her alleged biological father, owing, firstly, to the fact that under Italian law no paternity action could be brought until a final judgment had been delivered excluding paternity on the part of the putative father, and, secondly, to the length of the proceedings to contest paternity, which had been pending for over 12 years.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the applicant. It noted in particular that the applicant remained in a state of prolonged uncertainty with regard to her personal identity and that the way in which the proceedings were conducted constituted disproportionate interference with her right to respect for her private life. The Court therefore found that, in the circumstances of the case, the authorities had failed in their positive obligation to secure that right to the applicant.
Sex education in State schools
A.R. and L.R. v. Switzerland concerned the refusal by a Basle primary school to grant the first applicant’s request that her daughter (the second applicant), then aged seven and about to move up to the second year of primary school, be exempted from sex education lessons. Both applicants, who stated that they were not against sex education as such in State schools but were merely calling into question its usefulness at the kindergarten and early primary school stages, alleged that there had been a violation of the first applicant’s right to respect for her private and family life. They also argued that the second applicant had been subjected to an unjustified interference with the exercise of her right to respect for her private life.
As regards the applicants’ victim status, the Court began by finding that, under Article 34 (right of individual application) of the Convention, the application was manifestly ill-founded in respect of the second applicant, who had never actually attended sex education classes before the end of her second year at primary school. The Court also declared inadmissible, as being manifestly ill-founded, the first applicant’s complaints under Article 8 (right to respect for private and family life) of the Convention, finding that the Swiss authorities had not overstepped the room for manoeuvre (“margin of appreciation”) accorded to them by the Convention.
The Court noted in particular that one of the aims of sex education was the prevention of sexual violence and exploitation, which posed a real threat to the physical and mental health of children and against which they had to be protected at all ages. It also stressed that one of the objectives of State education was to prepare children for social realities, and this tended to justify the sexual education of very young children attending kindergarten or primary school. The Court thus found that school sex education, as practised in the canton of Basel-Urban, pursued legitimate aims. As to the proportionality of the refusal to grant exemption from such classes, the Court observed in particular that the national authorities had recognised the paramount importance of the parents’ right to provide for the sexual education of their children. Moreover, sex education at a kindergarten and in the first years of primary school was complementary in nature and not systematic; the teachers merely had to “react to the children’s questions and actions”.
Freedom of thought, conscience and religion (Article 9)
Perovy v. Russia concerned the Russian Orthodox rite of blessing in a classroom. The applicants in the case were a married couple (the first and second applicants) and their son (the third applicant) who were not members of the Russian Orthodox Church. They all alleged that the son had been forced to participate in the rite when starting his new school year at the age of seven, while the parents, who had not been informed about the ceremony, complained that their right to ensure their son’s education in conformity with their own religious convictions had not been respected.
The Court held that there had been no violation of the third applicant’s rights under Article 9 (freedom of religion) of the Convention, and no violation of the first two applicants’ rights under Article 2 (right to education) of Protocol No. 1 to the Convention. It found, in particular, that the ceremony had been a minor one-off event, limited in scope and duration, without any intention of indoctrination. Indeed, it had, according to the domestic authorities, essentially been an error of assessment by the school teacher and had immediately been rectified through specific decisions and sanctions. The Court also found that the third applicant had neither been forced to participate in the manifestation of the beliefs of another Christian denomination nor discouraged from adherence to his own beliefs. While being a witness to the Orthodox rite of blessing could have aroused some feelings of disagreement in him, that should be seen in the broader context of the open-mindedness and tolerance required in a democratic society of competing religious groups.
Belgium” v. Belgium (Belgian Linguistic Case) The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French. The Court found that, denying certain children access to the French-language schools with a special status in the six communes on the outskirts of Brussels because their parents lived outside those communes was in violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2 (right to education) of Protocol No. 1 to the Convention. However, the Court also held that the Convention did not guarantee a child the right to state or state-subsidised education in the language of her/his parents.
D.H. and Others v. the Czech Republic (no. 57325/00) concerned 18 Roma children, all Czech nationals, who were placed in schools for children with special needs, including those with a mental or social handicap, from 1996 to 1999. The applicants claimed that a two-tier educational system was in place in which the segregation of Roma children into such schools – which followed a simplified curriculum – was quasi-automatic.
The Court noted that, at the relevant time, the majority of children in special schools in the Czech Republic were of Roma origin. Roma children of average/above average intellect were often placed in those schools on the basis of psychological tests which were not adapted to people of their ethnic origin. The Court concluded that the law at that time had a disproportionately prejudicial effect on Roma children, in violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2 (right to education) of Protocol No. 1 to the Convention.
Ádám and Others v. Romania The applicants, ethnic Hungarians, undertook their education in their mother tongue. In order to receive their baccalaureate (school-leaving) qualification they had to sit exams to test their Romanian and their Hungarian, having to take two more exams than ethnic Romanians. They complained about discrimination against them as members of the Hungarian minority in the taking of final school exams — they had to take more exams than ethnic Romanians (two Hungarian tests) over the same number of days, and the Romanian exams had been difficult for them as non-native speakers.
The Court held that there had been no violation of Article 1 (general prohibition on discrimination) of Protocol No. 12 to the Convention, finding that neither the content of the curriculum nor the scheduling of the exams had caused a violation of the applicants’ rights. It noted in particular that the importance for members of a national minority to study the official language of the State and the corresponding need to assess their command of it in the baccalaureate was not called into question in the case. Nor was it its role to decide on what subjects should be tested or in what order, which came within States’ discretion (“margin of appreciation”).
X and Others v. Albania The applicants, Albanian nationals of Roma and Egyptian ethnic origin forming different households, complained of discrimination and segregation in their children’s education owing to the over-representation of Egyptian and Roma pupils in the “Naim Frashëri” elementary school in Korça which their children attended.
The Court held that there had been a violation of Article 1 (general prohibition of discrimination) of Protocol No. 12 to the Convention in the present case, finding that the State had failed to implement desegregating measures. It recalled in particular that it had already found a violation of the prohibition of discrimination in a similar context in Lavida and Others v. Greece (see above). It concluded that likewise, in the instance case, the delays and the non-implementation of appropriate desegregating measures could not be considered as having had an objective and reasonable justification.
Elmazova and Others v. North Macedonia concerned alleged segregation between pupils of Roma and Macedonian ethnicity, who were predominantly placed in different schools in the cities of Bitola that belonged to the same catchment area, and allegedly in different classes in Shtip. The applicants, the pupils and their parents, complained of segregation without any objective and reasonable justification.
The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention read in conjunction with Article 2 (right to education) of Protocol No. 1 to the Convention in the present case, finding that, eventhough there may not have been any discriminatory intent on the part of the State, the de facto situation – primary school pupils of Roma ethnicity being filtered into different schools and classes from ethnic Macedonians – had had no objective justification and so had amounted to educational segregation.
León Madrid v. Spain 2021 concerned the applicant’s request to reverse the order of the surnames under which her minor daughter (born in 2005) was registered. At the relevant time Spanish law provided that in the event of disagreement between the parents, the child would bear the father’s surname followed by that of the mother. The applicant argued that this regulation was discriminatory.
The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private life) of the Convention, finding that the reasons given by the Spanish Government had not been sufficiently objective and reasonable in order to justify the difference in treatment imposed on the applicant. In particular, the automatic nature of the application of the law at the relevant time – which had prevented the domestic courts from taking account of the particular circumstances of the case at hand – could not, in the Court’s view, be validly justified under the Convention.
Protection of property (Article 1 of Protocol No. 1)
S.L. and J.L. v. Croatia 2015 case concerned a deal to swap a seaside villa for a less valuable flat. The Social Welfare Centre had to give its consent to the deal as the owners of the villa – the two applicants – were minors. The Social Welfare Centre agreed to the proposed swap without rigorously examining the particular circumstances of the case or the family. The lawyer acting on behalf of the children’s parents also happened to be the son-in-law of the original owner of the flat. Before the Court, the applicants complained that the Croatian State, through the Social Welfare Centre, had failed to properly protect their interests as the owners of a villa which was of significantly greater value than the flat they had been given in exchange.
The central question in this case was whether the State took the best interests of the children into account in accepting the property swap. As minors their interests were supposed to be safeguarded by the State, in particular through the Social Welfare Centre and it was incumbent on the civil courts to examine the allegations concerning the swap agreement which raised the issue of compliance with the constitutional obligation of the State to protect children. The Court held that in the applicants’ case there had been a violation of Article 1 (protection of property) of Protocol 1 to the Convention, finding that the domestic authorities had failed to take the necessary measures to safeguard the proprietary interests of the children in the real estate swap agreement or to give them a reasonable opportunity to effectively challenge the agreement.
Right to education (Article 2 of Protocol No. 1)
Catan and Others v. the Republic of Moldova and Russiacase concerned the complaint by children and parents from the Moldovan community in Transdniestria about the effects of a language policy adopted in 1992 and 1994 by the separatist regime forbidding the use of the Latin alphabet in schools and the subsequent measures taken to enforce the policy. Those measures included the forcible eviction of pupils and teachers from Moldovan/Romanian-language schools as well as forcing the schools to close down and reopen in different premises.
The Court held that there had been no violation of Article 2 (right to education) of Protocol No. 1 to the Convention in respect of the Republic of Moldova and a violation of Article 2 of Protocol No. 1 in respect of the Russian Federation. It found in particular that the separatist regime could not survive without Russia’s continued military, economic and political support and that the closure of the schools therefore fell within Russia’s jurisdiction under the Convention. The Republic of Moldova, on the other hand, had not only refrained from supporting the regime but had made considerable efforts to support the applicants themselves by paying for the rent and refurbishment of the new school premises as well as for all equipment, teachers’ salaries and transport costs.
Mansur Yalçın and Others v. Turkey In this case, the applicants, who are adherents of the Alevi faith, an unorthodox minority branch of Islam, complained that the content of the compulsory classes in religion and ethics in schools was based on the Sunni understanding of Islam.
The Court held that there had been a violation of Article 2 (right to education) of Protocol No. 1 to the Convention with respect to three of the applicants, whose children were at secondary school at the relevant time. It observed in particular that in the field of religious instruction, the Turkish education system was still inadequately equipped to ensure respect for parents’ convictions.
Memlika v. Greece 2015 concerned the exclusion of children aged 7 and 11 from school after they were wrongly diagnosed with leprosy. The applicants – the two children in question and their parents – alleged in particular that the exclusion of the children from school had infringed their right to education. The Court held that there had been a violation of Article 2 (right to education) of Protocol No. 1 to the Convention. It accepted that the children’s exclusion from school had pursued the legitimate aim of preventing any risk of contamination.
C.P. v. the United Kingdom (no. 300/11) The applicant, a minor, complained that his temporary exclusion from school from 7 February 2007 to 20 April 2007 had breached his right to education.
The Court declared the application inadmissible pursuant to Article 35 (admissibility criteria) of the Convention, finding that, in the circumstances of the case, the applicant could not be said to have suffered a significant disadvantage in the sense of important adverse consequences.
Dupin v. France The applicant, the mother of an autistic child, complained in particular that the domestic authorities had refused to allow her child to attend a mainstream school. She also argued that the State had failed to fulfil its positive obligation to take the necessary measures for disabled children, and that the lack of education in itself constituted discrimination. The Court held that the complaint that there had been a violation of the right to education of the applicant’s child was inadmissible as manifestly ill-founded, finding that the refusal to admit the child to a mainstream school did not constitute a failure by the State to fulfil its obligations under Article 2 (right to education) of Protocol No. 1 or a systematic negation of his right to education on account of his disability. It observed in particular that the national authorities had regarded the child’s condition as an obstacle to his education in a mainstream setting.
After weighing in the balance the level of his disability and the benefit he could derive from access to inclusive education, they had opted for an education that was tailored to his needs, in a specialised setting. The Court also noted that this strategy had been satisfactory for the child’s father, who had custody of the child. Moreover, since 2013, the child had received effective educational support within an institution for special health and educational needs, and this form of schooling was conducive to his personal development.
Papageorgiou and Others v. Greece concerned compulsory religious education in Greek schools. The applicant parents complained that if they had wanted to have their daughters exempted from religious education, they would have had to declare that they were not Orthodox Christians. Furthermore, they complained that the school principal would have had to verify whether their declarations were true and that such declarations were then kept in the school archives. The Court held that there had been a violation of Article 2 (right to education) of Protocol No. 1 (right to education) to the Convention, interpreted in the light of Article 9 (freedom of thought, conscience, and religion) of the Convention. It stressed in particular that the authorities did not have the right to oblige individuals to reveal their beliefs.
However, the system in Greece for exempting children from religious education classes required parents to submit a solemn declaration saying that their children were not Orthodox Christians. That requirement placed an undue burden on parents to disclose information from which it could be inferred that they and their children held, or did not hold, a specific religious belief. Moreover, such a system could even deter parents from making an exemption request, especially in a case such as that of the applicants, who lived on small islands where the great majority of the population owed allegiance to a particular religion and the risk of stigmatisation was much higher.