Right to education (Article 2 of Protocol No. 1)
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS 71. The relevant domestic law and practice are described in Gherghina v. Romania (( dec. ) [GC], no. 42219/7, §§ 34-56, ECHR 2015). 72. The relevant international materials are described in Çam v. Turkey, no. 51500/08, §§ 37-38, 23 February 2016, and Guberina v. Croatia, no. 23682/13, §§ 34-42, ECHR 2016). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION TAKEN ALONE OR TOGETHER WITH ARTICLE 14 OF THE CONVENTION 73. The applicants mainly complained that the authorities had failed to take the requisite measures in compliance with their obligations under national law and the Convention to ensure that the first applicant ’ s physical integrity and dignity were respected at school and that he enjoyed the right to quality education without discrimination. They relied on Articles 3, 8, 13 and 14 of the Convention, on Article 2 of Protocol No. 1 to the Convention and on Article 1 of Protocol No. 12 to the Convention. 74. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine these complaints from the standpoint of Article 8 of the Convention and Article 2 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention (see Gherghina v. Romania ( dec. ) [GC], no. 42219/07, § 59, ECHR 2015). The provisions in question read as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 2 of Protocol No. 1 “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.” A. Admissibility 1. The parties ’ observations 75. The Government argued that the applicants had failed to exhaust domestic remedies. They pointed out that several relevant sets of proceedings were still pending when the observations had been submitted, on 23 December 2014 and 1 September 2017 respectively. Moreover, they considered that the length of the proceedings in case no. 14001/3/2014 (see paragraph 56 above) had been reasonable and did not render the remedy ineffective in practice, in so far as the applicants had raised several additional complaints throughout the proceedings and during those proceedings had successfully made use of the interim injunction procedure (see paragraph 63 above). 76. The applicants argued that the length of the proceedings initiated by them rendered those remedies ineffective, at least in practice. 2. The Court ’ s assessment 77. The Court makes reference to the general principles it has developed in its case-law concerning the exhaustion of domestic remedies (see Gherghina, cited above, §§ 83-89). 78. The Court considers that the Government ’ s objection is closely linked to the substance of this complaint and decides accordingly to join it to the merits. 79. The Court also notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ observations (a) The applicants 80. The applicants reiterated that the State authorities had an obligation to adapt mainstream schools in order to include children with disabilities. However, despite the abundant legislation on the matter, the situation remained confusing, with multiple authorities that had overlapping responsibilities and were insufficiently regulated, with the result that children integrated in mainstream schools did not get the support they were formally entitled to. The applicants also argued that the assistance received by the first applicant in school had been superficial and that the schools lacked specially adapted curricula and timetables and had been unable to provide him with the proper therapy and assistance despite the court decisions ordering them to do so, which remained unenforced. 81. The applicants contended that the concessions made to the first applicant in school, as well as the good grades he received, were mainly meant to keep him busy in class in the absence of individualised assistance from the teacher. For instance, they submitted that the first applicant had been allowed to use his tablet in class, but that the teacher never verified that he was actually using it for school purposes and not to play games. The school had also exempted him from the attendance requirement, but had never made arrangements to help him make up for his long absences. 82. The applicants further contended that the authorities ’ failure to assist the first applicant amounted to a de facto expulsion from school, and implicitly a denial of education. However, they observed that their case was not exceptional, that children with disabilities were more likely to be segregated in special schools where they received education of inferior standard, and that the lack of inclusive education was a systemic problem in the respondent State. Lastly, they reiterated the Commissioner ’ s findings concerning inclusive education after his 2013 visit to Romania, and in particular the overreliance on special schools; the low level of attendance in mainstream schools; the high drop-out rates and the poor data collection concerning the education of children with disabilities; the lack of trained teachers and appropriate teaching methods; the lack of funding for assisting pupils with disabilities, which often forced the parents to bear the costs; the reported practice of mainstream schools refusing enrolment to children with disabilities; and the ill-treatment of children with a disability by their educators and peers. The applicants concluded that this information offered sufficient prima facie evidence of discrimination in the present case. They further relied on the findings of the UN Committee on the Rights of the Child (2017 report), the Special Rapporteur on extreme poverty and human rights (report on the mission to Romania, 8 April 2016), the European Committee of Social Rights (2016 report), UNICEF (2015 report), and on the Government ’ s Disability Strategy 2016-2020. 83. Lastly, the applicants reiterated that accessibility was a gradual and anticipatory process by nature and that the authorities did not have to wait until a student with special needs requested it. They argued that the respondent State had had a duty to render school buildings and public infrastructure accessible since as far back as 1999, under Government Ordinance no. 102/1999. However, most of the improvements had come too late, when the applicant had already changed schools (specially adapted toilets, desks in the classrooms, stairlifts ). (b) The Government 84. The Government agreed that the right of access to education for children with a disability required that a system adapted to their needs be put in place. However, such a system could not function without the cooperation of all interested parties. On this point they reiterated that on several occasions the second applicant had failed to cooperate with the authorities or to bring her child to the activities organised for him by those authorities, had behaved improperly on school premises and had disobeyed the school rules. 85. The Government admitted that the local authorities had been late in complying with their legal obligation to render the school buildings accessible, and submitted that this was caused mainly by a lack of resources and by the other demands on the local budget. They pointed out that the school administration had compensated for those deficiencies by making reasonable accommodation for the first applicant ’ s benefit, by providing access ramps and gates for wheelchair access, asphalt in the school yard, a specially adapted toilet, air-conditioning in his classroom, and a specially adapted school desk. 86. They further admitted that it would be desirable to appoint a personal assistant after consultation with the family of a child with disabilities. However, they urged the Court to take into account the statements made by the persons who worked as personal assistants and the difficulties they had encountered in cooperating with the second applicant. 87. The Government accepted that not all the second applicant ’ s demands could be met, but pointed out that the authorities had to manage the budget in such a way as to cater not only to the applicants ’ needs, but also to the needs of the rest of the population dependent on State resources. Relying on McIntyre v. the United Kingdom (no. 29046/95, Commission decision of 21 October 1998, unreported) and Groza v. Romania (( dec. ), no. 31017/05, 21 February 2012), the Government argued that the measures taken by the authorities were proportionate to the legitimate aim pursued. 88. Referring to Article 14 of the Convention, the Government further argued that the authorities had ensured that the first applicant had access to education on an equal basis with pupils who did not have disabilities. The authorities had adapted the school programme to his needs and provided both educational and physical resources to assist him in school. (c) The third parties ’ comments 89. The Court received submissions from a number of third-party interveners. They all referred to the international standards for the protection of persons with disabilities, and in particular the UN Convention on the Rights of Persons with Disabilities (CRPD), General Comments nos. 4 and 5, the Social Charter and other Council of Europe standard-setting papers or recommendations, as well as similar legislation from other member States. They emphasised the need for inclusive education, which determined lifelong patterns of social inclusion. Furthermore, they stressed that in the field of education States had a positive obligation to make reasonable accommodation for children with disabilities. They pointed out that a wide gap still existed between standards in the field of education and the reality in many countries, including Council of Europe member States. 90. The Commissioner reiterated that children with disabilities were one of the groups most affected by school segregation, and that inclusion in mainstream education was often denied to these children on account of a lack of sufficient resources to provide individual support, the non- accessibility of the school environment, and prejudice, including on the part of school administrations, educators, peers and the families of non- disabled children. Although, according to the official statistics for 2013 in the respondent State, 60% of children with a disability were in mainstream education, other reliable sources indicated that the rate of inclusion was as low as 38%. On this point, the CEDCD submitted that out of 70,600 children with disabilities registered in Romania at the time of the submission of its observations, 31,486 were segregated in special schools and 17,975 children were out of school. 91. The Commissioner further reiterated that inclusion in mainstream education required reasonable accommodation and adequate and genuine support. He submitted that the implementation of laws on accessibility was often unduly delayed and not sufficiently monitored. In his view, the resulting lack of legal certainty, coupled with a widespread lack of understanding of the right to inclusive education, made it difficult for parents to challenge decisions infringing the right to education of their children. On this point he stressed that promptness and diligence were elements of particular relevance when considering whether a remedy in respect of a violation of children ’ s rights, such as the right to education, could be considered effective. 92. While admitting that the complaint lodged with the NCAD did not represent an effective remedy in this sphere, the CEDCD presented three examples of successful applications before that body in which teachers, school principals and even the parents of the victim ’ s classmates had been sanctioned for discriminating against children with disabilities and trying to bully them out of mainstream schools. 93. The United Nations Special Rapporteur on the rights of persons with disabilities reiterated that persons with disabilities could not effectively enjoy their right to education without an accessible environment, including schools and other places of education, and without accessible public transport, services and information and communications technologies. Furthermore, the authorities had an immediate obligation to provide reasonable accommodation from the moment it was requested; this could serve as a temporary solution for an individual when accessibility was lacking. The Special Rapporteur referred to the following as examples of reasonable accommodation in education: providing mobile ramps to enable access to the facilities; changing the location of a class; customising the timing of studies; adapting or acquiring the necessary equipment to enable persons with disabilities to attain and maintain maximum independence, including full physical and mental capacity; and allowing support persons (personal assistants, parents or any other person of their choice) to accompany them and assist during lessons. The Special Rapporteur also argued that the availability of supports should be considered in the light of the larger pool of resources available in the education, social protection and health systems and not limited to resources available at the educational institution in question. 94. In its submissions, Amnesty International referred to the standards developed by other jurisdictions in the field of inclusive education. The United States Supreme Court, in Endrew F. v. Douglas County School District RE-1, had ruled that simply passing a child with disabilities from grade level to grade level with no actual educational benefit was not sufficient under the relevant legislation. In Hurst v. State of Queensland, the Federal Court of Australia had found that teaching English and English sign language to a child with a hearing impairment whose first language was Auslan (Australian sign language) did not afford the child adequate conditions to enable her to learn to her full potential, and considered that the child in question would suffer serious disadvantage if she was required to simply cope with the conditions imposed. Lastly, the House of Lords decided in Regina v. East Sussex County Council Ex Parte Tandy, HL 21 May 1998, that when assessing the appropriate educational needs for a student with disabilities, the local authority must not consider its financial constraints as a reason not to provide appropriate education. 95. The RREI Latinoamerica presented case-law from the Inter- American Court of Human Rights according to which disability was to be assessed under a social model, as required by the CRPD, and not under a medical model. In particular, in the case of Sebastián Furlán v. Argentina the Inter-American Court had stated that if the social model for disability was taken into account, disability was not only defined by the presence of a physical, mental, intellectual or sensory impairment, but was related to the barriers or limitations that existed socially for persons to exercise their rights effectively. Furthermore, in 2016 the Inter-American Court of Human Rights had ordered a precautionary measure in favour of a twelve-year-old girl with disabilities, ordering Argentina to ensure and protect her right to life, physical integrity and health, as it found that on several occasions the medical treatments that the child needed in order to improve her health and attend school had been suspended (Precautionary measure no. 376/15 (Resolution 2016), published on 7 July 2016). 2. The Court ’ s assessment (a) General principles 96. The Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Di Trizio v. Switzerland, no. 7186/09, § 63, 2 February 2016). 97. The Court further observes that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Dickson v. the United Kingdom [GC], no. 44362/04, § 70, ECHR 2007 ‑ V). 98. The Court also makes reference to the general principles concerning the right to education, as recently reiterated in Çam v. Turkey (no. 51500/08, § 52-53, 23 February 2016, with further references). Furthermore, it has already held that, in order to comply with the requirements of Article 14 of the Convention, States have an obligation to make reasonable accommodation in the case of people with disabilities (see Çam, cited above, §§ 54 and 65, with further references). (b) Application of those principles to the present case 99. The Court has already had the opportunity to examine the system put in place by the respondent State to allow people with disabilities to complain about alleged infringements of their rights (see Gherghina, decision cited above, §§ 94-115, and Popa v. Romania ( dec. ), no. 4238/09, §§ 53-56, 14 November 2017). It concluded that an action lodged by the aggrieved party before the domestic courts represented an effective remedy which needed to be exhausted. The Court sees no reason to depart from this finding in the present case. More particularly, it notes that the domestic courts examined the applicants ’ complaints exhaustively and gave judgment on all counts, allowing most of their claims and ordering the authorities to act upon them (see paragraphs 56 to 61 above). 100. The Court acknowledges the complexity of the matter brought before the domestic courts (see, mutatis mutandis, Popa, cited above, §§ 8 and 35). It also notes that the applicants lodged their main action with the wrong division of the County Court and then also modified it during the course of the proceedings (see paragraph 57 above). In this context the length of the proceedings, which started on 24 April 2014 (see paragraph 56 above) and ended almost four years later, on 7 February 2018 (see paragraph 61 above), cannot be attributed solely to the authorities, who, moreover, did not remain passive but accompanied the applicants to the best of their abilities. In particular, the courts gave interim instructions to the authorities and insisted on their full implementation (see paragraphs 63 to 68 above), and the authorities provided the first applicant with support and assistance in school (see, for instance, paragraphs 39 and 46 above), or made efforts to find and retain a suitable personal assistant for him (see, in particular, paragraphs 53 and 54 above). 101. The Court notes that the authorities recommended that the first applicant attend mainstream schools throughout his education (see paragraph 13 above). This assessment is in compliance with the international standards in the field, which recommend inclusive education for children with disabilities (see Çam, cited above, § 64, and Enver Şahin v. Turkey, no. 23065/12, § 62, 30 January 2018). 102. The third-party observations confirm the difficulties encountered by children with a disability owing to a lack of infrastructure and of reasonable accommodation (see, in particular, paragraphs 90 and 93 above). The Government also admitted in their observations that there were delays in ensuring the accessibility of school buildings (see paragraph 85 above). On this point the Court reiterates that inclusive education is widely accepted to be the most appropriate means of guaranteeing inclusion and non - discrimination in the field of education (see Çam, cited above, § 64, and Enver Şahin, cited above, § 62). Therefore, in the absence of accessibility of the physical environment prior to the integration of children with a disability in mainstream schools, the authorities have an obligation to provide reasonable accommodation from the moment it is requested (see paragraphs 93 and 98 above). However, this obligation may not impose a disproportionate or undue burden on the authorities (see Çam, cited above, § 65). Moreover, it is not for the Court to define the “reasonable accommodation” – which can take on different material and non-material forms – to be implemented in the educational sphere in response to the educational needs of persons with disabilities (see Enver Şahin, cited above, § 61). 103. In this context, the Court acknowledges, in the educational sphere, that reasonable accommodation may take a variety of forms, whether physical or non-physical, educational or organisational, in terms of the architectural accessibility of school buildings, teacher training, curricular adaptation or appropriate facilities (see Çam, cited above, § 66). These adjustments can serve as a temporary solution for an individual when accessibility is lacking. 104. That being said, the Court will now examine whether the domestic authorities had recourse to alternative solutions in order to accommodate the first applicant. 105. At the outset, the Court finds it important that the first applicant was never completely deprived of education as he continued to attend school, to be graded for his work, and to advance through the school curriculum (see, mutatis mutandis, Şanlısoy v. Turkey ( dec. ), no. 77023/12, § 60, 8 November 2016). 106. The Court further observes that the authorities were aware of their obligation to ensure access to education for the first applicant, an obligation which stemmed both from the national law and from the State ’ s international commitments (see paragraphs 71 and 72 above). Moreover, this obligation was consistently reiterated by the domestic courts in the proceedings brought by the applicants (see paragraphs 61 and 63 above). On this point, the Court notes that reasonable accommodation was made for the first applicant ’ s benefit, as highlighted by the Government in their submissions (see paragraphs 39 and 85 above). In particular, when alerted by the applicants to the lack of accessibility and of reasonable accommodation in school (see paragraph 56 above), the domestic courts ordered the local authorities to take concrete measures in the first applicant ’ s favour (see paragraph 58 above). The courts also gave interim orders compelling the authorities to make immediate accommodation for the first applicant in school (see paragraph 63 above). The Court observes that the domestic courts reacted quickly and adequately to changes in the first applicant ’ s situation and renewed their instructions to the administrative authorities whenever they found that the measures taken by those authorities were insufficient (see paragraph 68 above). 107. Furthermore, the Court acknowledges the difficulties encountered by the State in finding a suitable personal assistant for the first applicant (see paragraphs 52, 53 and 86 above). It cannot ignore the fact that some of these difficulties were created by the applicants themselves, and in particular by the second applicant, who, by insisting that the personal assistants perform tasks incompatible with their job description, jeopardised the relationship between the parties concerned (see paragraphs 52 and 53 above). It also notes that the authorities renewed their efforts to find a suitable personal assistant (see paragraph 54 above), thus striving to comply with the domestic courts ’ findings in that regard (see paragraphs 50, 58 (d) and 66 above). 108. The Court notes that the second applicant also rendered futile other measures put in place by the authorities in school, in particular, by refusing the speech therapy (see paragraphs 46 and 47 above), the assistance by a support teacher (see paragraphs 37 -39 above) and the physiotherapy and psychological counselling (see respectively paragraphs 44 and 45 above) organised in school for the first applicant, as well as the installation of a stairlift (see paragraph 33 above). 109. The Court emphasises that it is not its task to define the resources to be implemented in order to meet the educational needs of children with disabilities. The national authorities, by reason of their direct and continuous contact with the vital forces of their countries, are in principle better placed than an international court to evaluate local needs and conditions in this regard (see Çam, cited above, § 66). It is, however, important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on persons with disabilities, whose particular vulnerability cannot be ignored. Bearing this in mind, the Court notes that, in the present case, the authorities did not turn a blind eye to the first applicant ’ s needs, but allocated resources to the schools attended by him in order to help accommodate his special requirements. It notes, for instance, that various adaptations were made to render his physical environment more accessible (see paragraphs 16, 25 - 26 and 30 - 33 above) and that support teachers and various therapists were assigned to him (see, for instance, paragraphs 37 -39, 42, 45 and 46 above). 110. Therefore, in the light of all the material before it, the Court is satisfied that the domestic authorities complied with their obligation to provide reasonable accommodation “not imposing a disproportionate or undue burden” and, within their margin of appreciation, to allocate resources in order to meet the educational needs of children with disabilities. 111. There has accordingly been no violation of Article 8 of the Convention or of Article 2 of Protocol No. 1 to the Convention taken alone or together with 14 of the Convention. In view of the above, it is not necessary to consider separately the Government ’ s preliminary objection (see paragraphs 75 and 78 above). II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 112. The applicants complained about the second applicant ’ s removal by the police from the school premises and the impact this incident had on the first applicant (see paragraph 69 above). They relied on Articles 3 and 8, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 113. The applicants argued that the police intervention had been neither proportionate nor gradual, in contradiction with the domestic requirements on the use of force by the police. The police officers treated the second applicant as if she had been a complete stranger trespassing on school property, thus ignoring the fact that, at that point, she had been providing personal assistance to her son on an almost daily basis for more than six years. They averred that the disproportionate character of the police intervention was emphasised by the gravity of the injuries caused to the second applicant, the relatively insignificant offence for which she had been sanctioned and the minor sanction applied. 114. The Government contended that the investigation had been effective and prompt. 115. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. In particular, the applicants failed to bring any evidence that the use of force by the police officers when removing the second applicant from the school premises had been disproportionate, or that the first applicant had been left without supervision in school during his mother ’ s absence. Moreover, the applicants failed to pursue their domestic complaints within the time-limits set by law, without bringing any evidence that the mechanism placed at their disposal would be ineffective. 116. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The Court held that there had been no violation of Article 8 (right to respect for private and family life), taken alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention, and no violation of Article 2 (right to education) of Protocol No. 1 to the Convention, taken alone and in conjunction with Article 14, finding that the Romanian authorities had complied with their obligation to make reasonable accommodation for the first applicant by allocating resources to meet the educational needs of children with disabilities.