Education [ECHR]

Right to Education Overview

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

Early case law focused on primary education. Later case law has clarified that the guarantee extends to secondary and higher education.

The right extends to availing of the means of education provided. States have a wide margin in respect of the organisation and funding of the education system.

Valsamis v Greece confirms that the Article entails some elements of positive obligations on the part of the State.

Exclusion

Memlika v. Greece 2015 e 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.

Disabled/ Mainstream

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.

Regulation of Education

W v UK confirmed that there is no right to selective education, particular denominational education or education in single sex schools.Simpson v UK indicated that there is no right to separate schools for those with special educational needs.

In Ponomaryovi v Bulgaria Russian nationals were required to pay fees for the last phase of secondary education while nationals were not. Although the state had a margin of discretion in relation to resources, the court indicated that education is a very particular type of public service which not only directly benefit those using it but also serves broader societal functions. There was held to be a breach.

In Ponomaryovi v Bulgaria in 2011 the court indicated

with more and more countries moving towards what has been described as a knowledge-based society. secondary education plays an ever-increasing role in successful personal development and in the social and professional integration of individuals concerned. Indeed, in a modern society having no more than basic knowledge and skills constitute a barrier to successful personal and professional development. It prevents the person concerned from adjusting to their environment and entails far-reaching consequences for social and economic well-being.

In earlier cases, the court emphasised the wide margin of appreciation for states in regulating education.

Establish  School

The second part of the Article provides for parental choice. It seeks to safeguard pluralism in education and counters possible state indoctrination.  It counters the view that the majority view must prevail. It reinforces the fair treatment of minorities.

Kjeldsen Busk Madsen and Pedersen v Denmark seems to confirm a right to establish a private school.   H v UK confirmed the right to educate children privately or in the home but that it may be regulated.

In Tarantino v Italy it was argued that the limitation on entry to particular vocational courses was a denial of education of choice. The court considered the proportionality of limiting spaces given resources and other constraints. The court found that is so far as the applicant complained that the same restrictions apply to private universities and therefore to instruction they are willing to pay for it is undeniable that the resources were theoretical and practical education was in fact be largely dependent on the private universities’ human, material and financial capacity and therefore on that basis would be possible to have higher admission numbers without imposing extra burden on state and instructors.

However, it is not irrelevant that the private sector in the years is partly reliant on state subsidies. More importantly in the present circumstances the court cannot find disproportionate or arbitrary, the state’s regulation of private institutions as insofar as such action can be considered necessary to prevent arbitrary admission and exclusions and to guarantee equal treatment of persons. …The fundamental right of everyone to an education is a right guaranteed equally to pupils in state and independent schools without distinction.

Accordingly, the state has an obligation to regulate them so as to ensure the Convention is complied with. In particular the court considers the state is justified in being rigorous in its regulation of the sector especially in the fields of study in question for a minimum and adequate education level is of utmost importance in order to ensure that access to private institutions is not available purely on the basis of financial means of candidates, irrespective of their qualifications and suitability for the profession.

Segregation

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

This case 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.

Bias in Special Education Designation

DH v Czech Republic raised the issue of allocation of special school places to Roma families. A very high number of Roma children were allocated to schools based on a test. The court indicated that there was evidence of indirect discrimination and cultural bias in the test. There was a breach notwithstanding parental consent because it was not informed.

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.

Language of Instruction

The early Belgian Linguistic cases in the 1960s, involved French-speaking residents in Flanders who wished their children to be educated through the medium of French. The court indicated there was no right to education in the language of the parents’ choice.

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.

There was a breach in that some elements of French-speaking classes at nursery and primary level were available subject to request by certain numbers. It was not available to French-speaking parents from outside the particular communes. This was held to be discriminatory and contrary to the protocol.

In Cyprus v Turkey, Cyprus complained that in the Turkish Republic of North Cyprus Greek language secondary schools had been closed after the Turkish invasion. Having provided education at primary level in Greek the requirement that secondary education be in Turkish or English breached the protocol.

Catan v Moldova and Russia raised similar issues in the disputed area of Transdniestria part of Moldova which had self-declared independence with a Russian ethnic population and the presence of Russian troops. Education was to be in Cyrillic and not Latin script. The court determined that Russia was in effective control of the area and that the imposition of a requirement breached the protocol in relation to parental rights for the education of their children.

The parents were in the invidious position of having to choose on the one hand between sending their children to schools where they would face the disadvantage of pursuing their entire secondary education in a combination of language and alphabet which they considered artificial and which is unrecognised anywhere in the world using teaching materials produced in Soviet times or alternatively subjecting their children to long journeys and/or some substandard facilities harassment and intimidation.

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”)

Freedom of thought, conscience and religion

Campell & Casans v UK considered philosophical convictions. The court indicated that the expression refers to beliefs equivalent to those protected by the freedom of expression. They denote a certain level of cogency seriousness cohesion and importance.

The philosophical convictions must be worthy of respect in the democratic society and are not incompatible with human dignity. In addition, they must not conflict with the fundamental right of the child to education. Lautsi v Italy confirmed secularism is a philosophical conviction for this purpose.

Neutrality requires a pluralist approach on the part of the state not a secularised one. It encourages respect for all worldviews rather than a preference for one. A preference for secularism over alternative worldviews whether religious philosophical or otherwise is not a neutral option. The Convention requires that respect be given to the first applicant’s convictions insofar as the education and teaching if children is concerned. It does not require a preferential option for the endorsement of those convictions over and above all others.

In Campbell & Casans v UK the parents’ stance on corporal punishment was a philosophical belief as it concerned the integrity of the person, the propriety or otherwise of the infliction of corporal punishment and the exclusion of the distress the risk of such punishment causes.

Religious Education

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.

Cultural / Religious Elements

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.

Valsamis v Greece concerned mandatory attendance at events commemorating national day in Greece. The applicant Jehovah’s Witnesses were opposed to the event’s claimed military overtones. The student was exempted from religion classes. The court decided that attendance at the event could not be said to affect philosophical convictions at the event as a parade, celebrated a range of subject matters which the majority held to be neutral in nature.

Hasan & Eylem Zengin v Turkey concerned participation in religious and cultural classes in one branch of Sunni Islam. There were exemptions for non-Moslems but not for adherents of another branch with a different tradition. The court considered the particular syllabus and there was a breach because it was not taught in an objective critical and pluralist manner and there were insufficient accommodations for the beliefs of the family concerned.

Folgero v Norway was concerned with religious teaching in primary schools in Norway. The parents were members of a humanist Association. There was a single integrated subject teaching religion with an emphasis on Christianity, cultural heritage and Evangelical Lutheran religion. There was a possible partial exemption from the subject By 9 judges to 8, the majority determined that Article 2 of Protocol 1 was breached.

Against this background notwithstanding any law that led to the purposes stated in connection with the integration introduction of the new subject in the ordinary primary and lower secondary schools it does not appear that the stakes care that information and knowledge included in the curriculum be conveyed in an objective critical and pluralistic manner for the purposes of Article 2 of protocol 1.

Lautsi v Italy concerned the presence of crucifixes in classrooms. The European Court found that there was no breach of the guarantee. The state had a margin of appreciation provided this does not prevent states from imparting or teaching educational information of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the silt school curriculum provided it is done so in an objective critical and pluralistic way. There was no proselytising, and the presence of the crucifixes was passive. It did not have the features of indoctrination.

It is increasingly difficult for a state to cater for the individual needs of parents on educational issues. I would go as far as saying that the main concern and this is a valid concern should be to offer children an education which will ensure their fullest integration into society in which they live and prepare them in the best possible way to cope effectively with the expectations that the society has of its members.…. The duties of the state have largely shifted from concerns of parents to the concerns of e society at large just reducing thus reducing the extent of the parent’s ability to determine outside the home the kind of education they will receive.

Sex education in State schools

Kjeldsen & Others v Denmark considered a law that provided for mandatory sex education in schools, integrated into core subjects. A number of parents claimed that it violated their religious and philosophical convictions. The court did not agree there was a breach; it did not consider there was indoctrination. Provided that information is presented in an objective critical and pluralistic manner it does they did not breach the guarantee.

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”.

Due Process

In Ali v UK the pupil was excluded from school while police were considering the investigation about criminal damage to the school. Despite procedural shortcomings, the prolonged explosion was held to be proportionate in the circumstances of a criminal investigation. An open-ended exclusion would be unlikely to be proportionate.

In Campbell v UK, 1982 the exclusion of a child from school in Scotland who did not submit to corporal punishment was found to be a violation.

In Mursel Erem v Turkey, it was held that there was a breach where a school refuse to accept good results following a string of earlier poor results, presuming it to be cheating.