Guest post on Epistatu v. Romania: a missed opportunity for clarification on (young) prisoners’ education

This guest post was written by Yousra Benfquih*

In the case of Epistatu v. Romania of 24 September 2013 before the European Court of Human Rights, the applicant, Mr. Cristian Epistatu, a Romanian national and final-year high-school student born in 1990, was sentenced to five and a half years’ imprisonment by a judgment of 12 March 2009 of the Bucharest County Court. Whilst the ECtHR decided that the detention conditions caused the applicant suffering attaining the threshold of degrading treatment proscribed by Article 3 ECHR, the latter’s complaint under Article 6 ECHR concerning the fairness of his criminal proceedings was declared manifestly ill-founded. More important, and subject-matter of the present guest post, was the applicant’s complaint that his right to education as guaranteed by Article 2 of Protocol No. 1 to the ECHR had been breached. He argued that this was the case as he was forced to abandon his last year of high-school in order to serve his prison sentence and the Romanian prison authorities did not allow him to complete his high-school education in prison. At the time of his incarceration, the applicant had completed eleven years of education and was enrolled in the twelfth year at a high-school. As his requests to the wardens of the different prisons he had been detained in to be allowed to complete his last year of high-school had been refused, the applicant held that the domestic authorities had failed to take any action to enable him to finish his studies.

The Court declares the foregoing complaint inadmissible. Firstly, for the Court, the fact that a person is only prevented from continuing in full-time education during the period corresponding to his or her lawful detention cannot be construed as a deprivation of the right to education within the meaning of Article 2 of Protocol No. 1 to the ECHR. Additionally, the Court holds that said Article cannot be understood as imposing an obligation on the prison authorities to set up ad hoc courses for applicants. Furthermore, the Court takes into account that the applicant’s requests to be enrolled in and to be allowed to finish his high-school education were examined by the prison authorities who informed him that they did not have the resources to arrange the requested courses at the time. The Court also points out that the applicant was allowed to enrol in and attended several sporting, artistic, religious and literary competitions and a number of training and educational programmes in prison during his detention. In light of the foregoing, the Court rejects the complaint for being manifestly ill-founded.

Comment

The reader’s first impression concerning the Court’s statement that “the fact that applicants were only [sic] prevented from continuing in full-time education during the period corresponding to their lawful detention (…) cannot be construed as a deprivation of the right to education within the meaning of Article 2 of Protocol No. 1 to the Convention” could be that this assertion seems fairly absolute. The absolute appearance of the foregoing statement should nonetheless be nuanced. Indeed, the Court clearly takes into account other factors to underpin the conclusion that absence of continuation of full time high-school education in prison did not deprive the applicant’s right to education: the fact that his requests were examined by the prison authorities, their lack of resources and the availability of alternative courses and programmes. A contrario, one might thus argue that obstruction of continuation of high-school education in detention facilities can amount to a deprivation of the right to education if, for example, the request to be enrolled in and allowed to finish high-school education is not carefully examined by the prison authorities, if resources to arrange such courses are in fact present, or if no alternative educational activities are organised in prison.

The fact that the Court takes into account that alternative educational courses and activities were available in prison, might bring one to the notion of availability of education in general. Concerning the latter, the European Committee of Social Rights considers that all education provided by states must fulfil the criteria of availability, accessibility, acceptability and adaptability, aligning in this regard with par. 6 of General Comment No. 13 of the Committee on Economic, Social and Cultural Rights on the right to education. When assessing the effective character of an education system in the framework of article 17 of the Revised European Social Charter, the Committee moreover asserts that particular attention should be paid to vulnerable groups such as children deprived of their liberty (ECSR, Mental Disability Advocacy Center (MDAC) v. Bulgaria, 3 June 2008, par. 34.). Though at the time of his incarceration the applicant was no longer a minor, given his indictment in December 2008 and his birth year of 1990, the chances of him being a minor at the time of committing the offence are not slim (though the summary statement of the facts in the present case does not permit to say so with certainty). In that case, it follows from the case law of the ECtHR that, once heightened protection is triggered for juvenile offenders, this protection mechanism continues even after the person concerned is no longer a minor.[1]

 In any event, and regardless of the age of the applicant at the time of the offence, starkly contrasting with the fact that both the CESCR and the ECSR regard the criterion of availability as an essential feature of education, is how the Court does not define nor analyse the legal problem at issue as one in terms of availability of education. From the perspective of a coherent and integrated international human rights terminology and paradigm, uniformity in legal vocabulary – especially when the term at hand is an instrumental tool on the basis of which fulfilment of a human right can be measured or evaluated – and explicit reasoning in terms of educational availability in the ECtHR’s case law could be enriching. Hitherto, the case law of the Court seems to point in the inverse direction, in so far as it asserts that Article 2 of Protocol No. 1 “cannot be interpreted as imposing a duty on the Contracting States to set up (…) particular educational establishments”. The Court’s focus appears rather one of accessibility, as it continues that: “any State doing so will be under an obligation to afford effective access to them” (ECtHR, Ponomaryovi v. Bulgaria, 21 June 2011,  par. 49).

It should be borne in mind that, urging for an availability approach by the Court does not necessarily imply that the outcome of the present case would have been different in that continuation of full-time high-school education would have been imperative. Though the idea of availability as an essential feature of educational programmes finds its origin in the earlier-mentioned General Comment No. 13 of the CESCR, the latter, nor the ICESCR, provide guidance on what availability means in the context of prison education.[2] Such guidance can be found, at the UN level, in the Standard Minimum Rules for the Treatment of Prisoners, which inter alia hold that “provision shall be made for the further education of all prisoners capable of profiting thereby”, mentioning that special attention must in this regard be paid to young prisoners and stressing the need for integration of prison education within the mainstream educational system. The 1990 Basic Principles for the Treatment of Prisoners include specific reference to the right of prisoners to take part in education aimed at the full development of the human personality. At European level, the Council of Europe has approved a number of recommendations relating specifically to prisoners, notably the 1990 Recommendation on Education in Prison and the in 2006 revised European Prison Rules. Again, it is stressed that particular attention must be paid to the education of young prisoners and the principle of integration within mainstream education is put forward. The Rules also explicitly assert that the educational programmes prisons must seek to provide all prisoners with have to meet the prisoners’ individual needs and aspirations.[3]

Though from the foregoing legal instruments one cannot per se deduce that availability of education in prison context implies continuation of previous full-time (in casu, high-school) education, they do contain important guidelines and principles, the relevance of which seems not met by, nor reflected in the utter brevity of the Court’s admissibility assessment. In light of the foregoing, an assessment of the merits would have allowed the Court to verify to what extent the applicant’s individual needs, his young age, and the importance of educational integration, were effectively taken into account in the assessment of his request by the prison authorities. The swiftness with which the Court declares the complaint inadmissible seems difficult to understand for two further reasons. Firstly, one could have expected the Court to deepen its analysis in light of the societal function of prison education and its important role in the rehabilitative processes and social inclusion of prisoners.[4] Secondly, it is surprising given the Court’s own case law which underscores that education, as a very particular type of public service enjoying direct protection under the ECHR, serves broader societal functions. As to the State’s margin of appreciation in the field of secondary education, the Court clarifies that it oscillates between the small margin concerning primary schooling and the large margin as to the university level, referring in this regard to the differentiation made between the three educational levels in both the UNCRC and the ICESCR. The Court continues by accentuating the ever-increasing role of secondary education in successful personal development and socio-professional integration in contemporary knowledge-based societies (Ponomaryovi v. Bulgaria, paras. 55-57). Though at first sight, this seems to indicate a reduction of the State’s margin of appreciation in the organisation of secondary education and an ensuing heightened scrutiny by the Court, such a conclusion now seems incompatible with the shortness of the Court’s admissibility assessment in the present case.

It should be underscored that said assessment is not an admissibility assessment sensu stricto but an admissibility assessment based on the merits. From a procedural perspective, this is unproblematic. Indeed, the term “manifestly” does not exclude the possibility of a detailed judicial reasoning but only means that a preliminary examination of the application’s substance does not disclose any appearance of a violation of the rights guaranteed by the Convention.[5] For all the foregoing reasons however, the limitation to an admissibility assessment is undoubtedly regrettable. In addition, it would have been interesting to see how the Court would have examined some of the government’s objections, such as the argument that the applicant had completed the compulsory education requirement of ten school grades. Such a formal argument seems without relevance for the assessment whether the right to education is infringed, as the tendency in the Court’s case law appears to prioritize concrete results of the education received over formal educational criteria. Indeed, for the Court, for the right to education to be effective, it is necessary that “inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, (…) official recognition of the studies which he has completed”.[6] Therefore, precisely the impossibility for the applicant to complete his studies in prison and to obtain official recognition thereof, appears problematic, and an assessment of the merits would have allowed the Court to shed more light on this issue, and all the other above-mentioned matters relating to prison education as a whole.

* Yousra Benfquih is a PhD researcher at the University of Antwerp


[1] Indeed, in the case of Maslov v. Austria, the Court considered that “the obligation to have regard to the best interests of the child also applies if the person to be expelled is himself or herself a minor, or if (…) the reason for the expulsion lies in offences committed when a minor”  (par. 82).

[2] W. Vandenhole, “Recht op arbeid, beroepsopleiding en onderwijs voor gedetineerden” in E. Brems, S. Sottiaux, P. Vanden Heede and W. Vandenhole (eds.), Vrijheden en vrijheidsbeneming – Mensenrechten van gedetineerden, Antwerpen, Intersentia, 2005, p. 225.

[3] “Prison Education and Training in Europe – current state-of-play and challenges”, a summary report authored for the European Commission by GHK Consulting, May 2013, p. 9.

[4] See for more on the importance of prison education: ibid., p. 7.

[5] Council of Europe / ECtHR, Practical Guide on Admissibility Criteria, 2011.

[6] Oršuš and Others v. Croatia, 16 March 2010, par. 146 and ECSR, Mental Disability Advocacy Center (MDAC) v. Bulgaria, 3 June 2008, par. 46., where the importance of being eligible for a diploma is stressed.

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