Court/Judicial body: Constitutional Court
Date: 19 May 2010 CRC
Provisions: Article 1: Definition of a Child Article 28: Education
Other international provisions:American Convention on Human Rights ( Article 26)Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ( Article 13)International Covenant on Economic, Social and Cultural Rights ( Article 13.2); General Comments Nos. 11 and 13 of the Committee on Economic, Social and Cultural RightsUniversal Declaration of Human Rights ( Article 26)
Domestic provisions: Constitution ( Article 67) Law 115 of 1994 ( Article 183)
Background: With the assistance of the Colombian Coalition for the Right to Education and the Cornell Law School International Human Rights Clinic, two citizens (Castillo Sanchez and Hoyos Ceballos) filed a lawsuit to challenging the imposition of fees for primary education under a law authorising the government to regulate fees charged for attending public schools.
Issue and resolution: Education. The Court agreed that the government has the obligation to not only guarantee access to primary education for all children, but to also guarantee that it is free of charge, and held that the law in question should be interpreted in light of this obligation.
Court reasoning: Primary education is a fundamental right for all under the age of 18, who are worthy of special protections due to their situation of dependence and vulnerability. The legislative history of the law in question shows that lawmakers did not intend to go against the constitution and mandate that the government start charging for the primary education it provides through public schools. Furthermore, by signing and ratifying various international human rights treaties, including the CRC, the government also assumed the obligation to guarantee access free of charge to primary education for all children.
Excerpt citing CRC and other relevant human rights instrumentsas translated by CRIN: III. … Article 28 of the Convention on the Rights of the Child consecrates that the State should “make primary education compulsory and available free to all.” VI.2.1. …They indicate that the Colombian State incorporated into its internal legislation the regulation related to the free compulsory primary education contemplated in those systems of protection of rights. That international norm regarding free compulsory primary education should be considered incorporated into the Colombian constitutional order. In fact, the provisions regarding the subject are consecrated…in the Convention on the Rights of the Child (Art. 28). VI.3.1.3. The compulsory nature of, universality and free access to primary education is reiterated by the Convention on the Rights of the Child of 1989, an instrument which in its Article 28 establishes: ” Article 28 1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; … 3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.” VI.8.2.2. It is of interest to highlight in a specific manner that the International Covenant on Economic, Social and Cultural Rights (Art. 13, No. 2) contemplates that the States shall undertake that “primary education shall be compulsory and available free to all.” This disposition has been reiterated by the Convention on the Rights of the Child (Art. 13, No. 3.a) ….
Notes:The case received a fair amount of attention in the press; to read news coverage, visit http://www.eafit.edu.co/agencia-noticias/historico-noticias/2010/julio/Paginas/gratuidad-educacion-primaria-implicaciones-colombia.aspx (Spanish) or http://articles.latimes.com/2010/jun/07/opinion/la-ed-colombia-20100607 (English).
CRIN comments: CRIN believes this decision is consistent with the CRC. As noted by the Court, Colombia has an obligation under Article 28 of the Convention to make primary education available to all children without charge.
Citation: Decision C-376/2010, Colombian Constitutional Court, May 19, 2010.
Link to full judgement: http://www.corteconstitucional.gov.co/RELATORIA/2010/C-376-10.htm