It is helpful / necessary to see what guides the Committee uses to interpret the provisions contained within the European Convention on Human Rights and to decide cases. In general, there are two key indicators of interpretation: general comments and case law. With respect to the regional human rights instruments, it should be noted that none of the corresponding regional bodies have made general comments on how the treaties are to be interpreted.
In order better to understand the Committee's position regarding certain aspects of the right to education, it is useful to consider its previous decisions in a number of key cases. Whilst the committee is not obliged to follow its previous decisions, there is fairly high degree of consistency in its decisions.
Click on the following for details of the cases:
Timishev v Russia 55762/00 European Court of Human Rights
In Timishev v Russia, the Russian Government confirmed that Russian law did not allow children’s right to an education to be made conditional on the registration of their parents’ residence. As such the European Court of Human Rights held that Article 2 of the First Protocol was breached when an applicant’s children were excluded from school because he was not registered as a resident in the area.
55762/00 European Court of Human Rights
Article 76 of the Danish Constitution as cited in para 15, Pedersen Case, id. . The applicants were parents of children who were going to State primary schools in Denmark. As per the Danish Constitution, all children have the right to free and compulsory education in State primary schools. In this case, the State had introduced compulsory sex education in State primary schools as part of the curriculum. This change in the curriculum was introduced by a Bill passed by the Parliament. There were guidelines and safeguards against a) showing pornography, b) teachers giving sex education to pupils when they were alone, c) giving information on methods of sexual intercourse and d) using vulgar language while imparting sex education. The applicants, who were parents of school going children, gave several petitions to have their children exempted from sex education in concerned State schools. However, these requests were not met and all of them withdrew their children from the said schools.
The applicants argued that the Denmark Government had violated article 2 of Protocol No. 1 to the European Convention on Human Rights, which states as follows: “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 religions and philosophical convictions.” The State argued that article 2 would cover only religious instruction and not all forms of instruction. The Court rejected this argument and held that any teaching should respect parents’ religious and moral convictions. However, the Court also held that article 2 would be violated only if while imparting sex education, the teachers advocated sex at a particular age or particular type of sexual behaviour. Moreover, the parents still had the freedom to educate their children at home to instill their own religious convictions and beliefs and therefore, imparting sex educationwas not per se a violation of the above-mentioned article 2.
In Pedersen’s Case, the fact still remains that the religious and moral beliefs were not altogether opposed to school education and therefore the task of the European Court of Human Rights was much simpler. The dilemma is more complex where religious beliefs etc are opposed to full-time formal school education. For example, where a child is inducted into the monastic order of a particular religion at the age of six and thereafter being given religious instruction which is very different from the curriculum in a regular school, the obvious question is whether such a practice should be exempted as a cultural right or whether it may be viewed as a violation of a child’s human right to primary education. At this juncture, it is important to note that in Kerala, exemption from free and compulsory education is granted on the grounds of religious or social custom. The question is whether such exemptions should be allowed at all.
Eighteen Roma children from the southeastern Czech city of Ostrava are seeking redress at the European Court of Human Rights for having been segregated in "special" schools for those deemed mentally deficient, where they received a markedly inferior education. The complaint, submitted by the European Roma Rights Centre in 2000, builds on intensive qualitative and quantitative research into the situation of Roma in Czech schooling which revealed that children were being assigned to schools based on their racial or ethnic identity rather than academic performance. In challenging their de facto segregation, the applicants asked the Court to find that they were subjected to degrading treatment in breach of Article 3 of the European Convention on Human Rights, and to a racially discriminatory denial of their rights to education, in breach of Article 14, taken together with Article 2 of Protocol 1. This is the first challenge to systemic racial segregation in education to reach the European Court of Human Rights. The Court heard oral arguments on the case on March 1, 2005. The Justice Initiative served, and continues to serve, as co-counsel for the applicants.
Case Status: In a 6-1 decision issued in February 2006, the Second Section of the European Court of Human Rights found no evidence of discrimination against the applicants. Although the judges agreed that the applicants' complaint was based on a number of serious arguments, it ruled against them for three main reasons. First, the Court found it significant that the system of special schooling was not established solely to cater to Roma children, but was established with the legitimate aim of assisting children with learning disabilities to obtain a basic education. Second, the tests were administered by professional psychologists, and it was not the role of the Court to go beyond the facts of the case and require the government to show that individual psychologists had not adopted a discriminatory approach to these particular children. Third, the Court placed considerable weight on the failure of the applicants' parents to lodge appeals to the decisions to place their children in special schools, and on the fact that in a number of the cases the parents had requested that their children be transferred to a special school.
In May 2006, the Justice Initiative and its co-counsel successfully petitioned for referral to the Grand Chamber, arguing that the case raises "serious question[s] affecting the interpretation and application of the Convention," namely that the Chamber's ruling on differential treatment and the "objective and reasonable justification" criterion was inconsistent; that the Chamber applied a confusing test of discrimination under Article 14 that contradicts its previous jurisprudence; that the Chamber's deference to the special school system under the concept of "margin of appreciation" is misplaced; and that the Court misinterpreted certain key facts. The request for referral also argued that the case raises "a serious issue of general importance" - segregation of Roma children, which remains a widespread problem that must be remedied. The Grand Chamber granted the petition for rehearing on July 3, 2006 and heard oral arguments on January 17, 2007.
Application no. 25781/94 European Court of Human Rights May 2001
The Court held that (amongst others) the following two violations had taken place:
- violation of Article 2 of Protocol No. 1 (right to education) in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them;
- violation of Article 3 in that the Greek Cypriots living in the Karpas area of northern Cyprus had been subjected to discrimination amounting to degrading treatment;
- and called on the Turkish authorities in Northern Cyprus to refrain from censoring Greek language textbooks.
The Court found that "the discontinuance" (that is, closure) of Greek-medium secondary schools amounted to a denial of the right to education.
Belgian Linguistic Case (Nos. 1 & 2)
(No.1) (1967), Series A, No.5 (1979-80) 1 EHRR 241 (No.2) (1968), Series A, No.6 (1979-80) 1 EHRR 252
This cae was brought by French-speaking residents of certain Flemish-speaking areas of Belgium, who wanted their children to be educated in French. While Dutch-speaking children in a particular French-speaking area were allowed to be educated in Dutch-speaking schools in a bilingual district outside the neighbourhood, French-speaking children in an equivalent Flemish area could not attend the French-speaking schools in the same bilingual district but were compelled to attend their local Dutch-language schools.
The Court found that article 2 of the First Protocol to the ECHR does not extend the right to education to require States to establish at their own expense, or to subsidise, education of any particular type or at any particular level. It does guarantee a right of access to educational institutions existing at a given time and a right to an effective education. For the right of education to be effective, there must be a right to official recognition of the studies a student has successfully completed.
There had, however, been a violation of Article 14 of the Convention (anti-discrimination) in conjunction with Article 2 as the legislation prevented children from having access to French-language schools in certain communes of Brussels, solely on the basis of the residence of their parents. This was not the case for Dutch-language schools and thus constituted discriminatory treatment.
Adapted from COHRE’s Litigating Economic, Social and Cultural Rights: Legal Practitioners Dossier" (2006) http://www.cohre.org/store/attachments/COHRE%20Legal%20Practitioners%20Dossier.pdf at pp.259-60
COSTELLO-ROBERTS v UNITED KINGDOM 23 Mar 1993
Costello-Roberts (C-R), when a 7 year old pupil at a private school, had been `whacked' three times on his bottom (through his shorts) with a rubber-soled gym shoe. This punishment was imposed in private by the headmaster 8 days after he accumulated 5 demerit marks and 3 days after being informed that he would be so punished. The use of corporal punishment was not mentioned in the school's prospectus and his mother complained to the police. She was told that no action could be taken without visible bruising. C-R and his mother complained about the corporal punishment, an interference with private and family life and the absence of an effective remedy. The Commission, having declared the mother's complaint inadmissible, found (9-4) a breach of Art 8 but not of Art 3 and (11-2) a breach of Art 13.
The Court held: (1) that treatment at a private school which was incompatible with the ECHR would engage a state party's responsibility under it; (2) that, despite the automatic nature of the punishment and the 3 day wait before its imposition, the minimum level of severity had not been attained and there was no evidence of any severe or long-lasting effects; (3) (5-4) that there was, therefore, no violation of Art 3; (4) that, although Art 8 might afford greater protection than Art 3 in respect of disciplinary measures, the treatment here did not entail sufficient adverse effects for C-R's physical or moral integrity to constitute a violation; (5) that, since C-R could have brought civil proceedings for assault leading to appropriate relief and since the effectiveness of a remedy does not depend upon the certainty of a favourable outcome, there was no violation of Art 13.
This decision is an important reiteration of the view that private action can engage the state responsibility. However, the Court did not expressly find that a state has a duty to prevent breaches of Arts 3 and 8 by private persons but relied on three principles: a school's disciplinary system falls within the right to education (here it relied upon its own decision in Campbell and Cosans, Ser A No 48, and the Convention on the Rights of the Child, Art 28); that there should be no distinction between pupils in state and private schools; and state responsibility cannot be absolved by delegation to private bodies or individuals (potentially important in an era of privatisation). The majority, although having misgivings about the automatic nature of the punishment, sought to distinguish the present case from Tyrer (Ser A No 26) where a birch was applied to T's bare posterior in slightly more public circumstances. The dissenting judges (Ryssdal, Thor Vilhjalmsson, Matscher and Wildhaber) would have been prepared to accept a spanking on the spur of the moment but found the ritual and lapse of time, together with the lack of adequate consent from C-R's mother, enough to make it a degrading punishment. The majority did not address the issue of lack of consent and presumably regarded it as being given otherwise, as in Campbell and Cosans, it might have had to consider a violation of Prot 1 Art 2. The relevance of consent to the dissenters is not clear since they rightly state that C-R's rights under Art 3 are not diminished by balancing them against his mother's rights. Given the relatively moderate nature of the punishment it is clear why the Commission regretted the settlement in Y v United Kingdom (Ser A No 247-A; Bulletin, vol 7, p 71) but Judge Freeland's view that the case was at or near the borderline should be noted. The private life claim was unsuccessful but the Court has sown sufficient seeds for a rich harvest of cases concerned with the applicability of this right to schools and comparable institutions. Although a favourable outcome is not required for a remedy to be effective, the Court's view that assault proceedings satisfied Art 13 seems unrealistic given the domestic cases (including Y v United Kingdom) in which more severe punishments were regarded as lawful and the supposed borderline character of this case; even punishments which violated Art 3 were still likely to be treated as permissible under the English law of assault.
European Court of Human Rights (2001) 33 EHRR 399
Chapman v United Kingdom - European Court of Human Rights (2001) 33 EHRR 399
Facts: a Gypsy woman purchased land in 1985 with the intention of living on it in a caravan after a history of continual eviction and harassment. She was refused planning permission to reside on the land and was given 15 months to vacate the land. She claimed that her right to respect for her home, family and private life (Article 8) and her right to non-discrimination (Article 14) had been violated.
Decision: The Court held that there had been a ‘interference’ with the enjoyment of a home, as well as private and family life since what was in issue was a traditional way of life.
The Court, however, applied the exception in Article 8(2) that such interference was “necessary in a democratic society.” The land was the subject of environmental protection and a wide margin of discretion was to be accorded to planning issues. The Court also noted that the emerging consensus among Contracting states of the Council of Europe on the special needs of minorities and an obligation to protect their security, identity and lifestyle was not sufficiently concrete for the Court to derive any guidance as to the conduct or standards for treatment of minorities, which Contracting States consider desirable in any particular situation. The right to non-discrimination was likewise not violated since any differences in treatment were a legitimate aim for environmental protection and any discrimination was proportionate to those aims.
Right to education relevance – this case gives an example of how interferences, even apparently discriminatory ones, can be justified under some legitimate aims as prescribed in the law such as the protection of the environment.
NB It will normally be the case, as it was here, that such interference in the right will have to be proportionate to the aim.
Adapted from COHRE’s Litigating Economic, Social and Cultural Rights: Legal Practitioners Dossier" (2006) http://www.cohre.org/store/attachments/COHRE%20Legal%20Practitioners%20Dossier.pdf at pp.260-1