Court/Judicial body: European Court of Human Rights (Fourth Section)
Date: 28 November 2011 CRC
Provisions: Article 2: Non-discrimination Article 28: Right to education
Other international provisions: European Convention on Human Rights (ECHR): Article 14, General prohibition on discrimination European Convention on Human Rights, Protocol 1: Article 2, No denial of the right to education International Covenant on Economic, Social and Cultural Rights: Article 13, Universal right to education The European Social Charter (Revised): Article 17, Right of children and young persons to social, legal and economic protection (including measures designed to provide free education)
Domestic provisions: Bulgarian Constitution 1991: Article 53, Universal right to education unless Bulgarian law requires Bulgarian nationality Bulgarian National Education Act 1991: Section 6, Right to free education for Bulgarian nationals; Section 4, Right to free education for aliens who have a Bulgarian residence permit; or who have been enrolled in a Bulgarian school following a decision by the Council of Ministers; or whose parents work in Bulgaria and are nationals of an EU member state or of an EEA member state or of Switzerland. Other aliens to be enrolled but may be charged a fee fixed by the Minister of Education, with the proceeds being reinvested in the relevant educational establishment.
Background: The complainants were Russian nationals who did not hold Bulgarian permanent residence permits during the relevant period; nor did they otherwise fall into any of the categories that would enable them to avoid having to pay the fee charged to certain aliens undertaking their secondary education in Bulgaria under the Bulgarian National Education Act 1991. One of the complainants had therefore been issued with a demand for 800 Euros in fees, while 2,600 Euros were demanded from the other. Both complainants went on to secure Bulgarian permanent residence permits, but the Bulgarian national courts held that this only prevented them from having to pay school fees in the future. The fees originally charged were, therefore, still owed. The complainants applied to the European Court of Human Rights alleging that they had been discriminated against in breach of Article 14 of the ECHR and Article 2 of Protocol 1 because, unlike Bulgarian nationals and certain other categories of alien, they had been required to pay fees in order to pursue their secondary education. They also highlighted that they had been children during the relevant period and that, under Article 28 of the CRC (which formed part of domestic Bulgarian law), the State had a duty to assist children in their drive to become fully fledged members of society.
Issue and resolution: Discrimination, right to education. The ECtHR agreed that such a breach had occurred and concluded that this breach was not justified.
Court reasoning: The Court held that, although Article 2 of Protocol 1 of the ECHR does not impose a duty on States to set up particular educational establishments, States are obliged to afford effective access to the educational institutions which already exist. The Court noted that the CRC appeared to draw a distinction in Article 28 between primary education, which States must make compulsory and free to all, and secondary and tertiary education, which States are encouraged to develop and make accessible to all. The Court considered that, although primary education is essential and tertiary education less important, secondary education plays an “ever-increasing role” in personal and social development, such that having only basic knowledge and skills constitutes a barrier in modern society. The Court concluded that, as the complainants had attended secondary schools set up and run by the Bulgarian State but had then been required to pay fees charged due to their nationality and immigration status, there had been a violation of Article 14 of the ECHR taken in conjunction with Article 2 of Protocol 1. The Court considered that in the circumstances and facts of the case this breach was not justified, awarding damages totalling 6,000 Euros.
Excerpt citing CRC and other relevant human rights Article 2 of Protocol No. 1 and Article 14 of the European Convention on Human Rights are discussed throughout the judgment, particularly at paragraphs 48 to 64. 46. “[…] Under Article 28 of the United Nations Convention on the Rights of the Child, the State had the duty to assist children in their drive to become fully fledged members of society. By erecting insuperable obstacles to the completion of their secondary education, the State was preventing them from developing in that way. The requirement for the applicants to pay fees had been discriminatory because they had been in an identical situation to the rest of their schoolmates. Under the 1991 Constitution, all individuals residing in Bulgaria had the same rights and obligations regardless of their nationality and status. Lastly, it had to be borne in mind that the applicants had been children at the material time and thus end to special protection under the Convention on the Rights of the Child, which was part of domestic law.” [This is a description of the complainants’ submissions to the Court] 57. “Secondary education, which is in issue in the present case, falls between those two extremes. The distinction is confirmed by the difference of wording between sub-paragraphs (a), (b) and (c) of Article 28 § 1 of the United Nations Convention on the Rights of the Child, the first of which enjoins States to “[m]ake primary education compulsory and available free to all”, whereas the second and the third merely call upon them to “[e]ncourage the development of different forms of secondary education … and take appropriate measures such as the introduction of free education and offering financial assistance in case of need” and to “[m]ake higher education accessible to all on the basis of capacity by every appropriate means” (see paragraph 33 above). […]”
CRIN comments: CRIN believes that this decision is consistent with the CRC. The prohibition on discrimination set out in Article 2 means that national origin or immigration status must not form the basis of differential treatment with regard to any of the Convention rights, while Article 28 explicitly states that the right to education should be achieved progressively and on the basis of equal opportunity.
Citation: Application 5335/05 Link to Full Judgment: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-105295