In Velyo Velev v. Bulgaria, the Court found a violation of the right to education (Article 2 Protocol 1) in a case concerning the refusal to allow a prisoner to enrol in a secondary school operating inside the prison. While the judgment should be hailed for explicitly affirming that remand prisoners also enjoy the right to education, it is unfortunate that the Court continues to construct the scope of Article 2 Protocol 1 in a very narrow fashion. As a result the Court fails to provide genuine substance to the right to education in a prison context.
Facts and judgment
The case concerns a 26-years old man who was detained on remand for 29 months on suspicion of unlawful possession of firearms. During this period, he made numerous requests to attend the school operating within the prison in order to complete his secondary education. All of these requests were however refused based on a variety of reasons, in particular that remand prisoners were not entitled to education in prison and that prisoners with prior convictions, like the applicant, could not be mixed with prisoners without prior convictions.
The Court starts its discussion of the merits by reiterating its restrictive ‘negative’ interpretation of the scope of the right to education:
“while Article 2 of Protocol No. 1 cannot be interpreted as imposing a duty on the Contracting State to set up or subsidise particular educational establishments, any State doing so will be under an obligation to afford effective access to them. Put differently, access to educational institutions existing at a given time is an inherent part of the right set out in the first sentence of Article 2 of Protocol No. 1”
In the context of prisons, this implies that:
“Although Article 2 of Protocol No. 1 does not impose a positive obligation to provide education in prison in all circumstances, where such a possibility is available it should not be subject to arbitrary and unreasonable restrictions.”
Instead of elaborating on the substance of the right to education in a prison context, the Court thus adopts a more ‘procedural’ approach, restricting itself to analysing whether there are sufficient safeguards against arbitrariness and whether the prison authorities provided convincing reasons to justify the refusals.
First of all, the Court considers that there was a lack of clarity in the relevant legislative framework concerning the question whether remand prisoners were entitled to inclusion in educational programmes on the same footing as convicted prisoners. According to the Court, in the absence of clear rules to the contrary, the provisions regarding convicted prisoners were to apply equally to remand prisoners.
The Court continues to examine the reasons given by the authorities to justify the refusals, rejecting all of them for being unsubstantiated. Firstly, the Court finds no evidence that remand prisoners had to be excluded from education in prisoner in order to protect them against harm inflicted by convicted prisoners. Secondly, the Court finds that the fact that the ultimate length of pre-trial detention is uncertain at the start should not be used as a justification for depriving remand prisoners from access to educational facilities, save perhaps in cases where it is somehow clear that the detention will be of short duration. Thirdly, the argument that the applicant should be kept separately from other prisoners because of the risk that he would be sentenced as a recidivist, is considered incompatible with the presumption of innocence.
Since none of the grounds relied on by the Government are persuasive, the balance easily tips in favour of the applicant:
“On the other side of the balance must be set the applicant’s undoubted interest in completing his secondary education. The value of providing education in prison, both in respect of the individual prisoner and the prison environment and society as a whole has been recognised by the Committee of Ministers of the Council of Europe in its recommendations on education in prison and on the European Prison Rules”
The Court therefore concludes that there has been a violation of Article 2 Protocol 1.
First of all, the judgment is important since the Court recognizes that the right to education in prison is as relevant for remand prisoners as for convicted prisoners. Without explicitly undertaking a non-discrimination analysis, the judgment can be considered to build upon the right of equal treatment of remand and convicted prisoners which was recognized under Article 14 in the case of Gülay Çetin v. Turkey (see Cedric De Koker’s blogpost here).
Regrettably, however, the Court continues to stick to its very ‘negative’ interpretation of the right to education. Instead of drawing inspiration from the practice related to the right to education as guaranteed by other human rights conventions (for example Article 13 of the International Covenant on Economic, Social and Cultural Rights or Article 17 of the Revised Social Charter), the Court constructs Article 2 Protocol 1 as something entirely opposed to a ‘full’ socio-economic right to education: only access to ‘existing’ educational facilities falls within the scope of this Article.
As argued by Yousra Benfquih in her blogpost on the education in prison case of Epistatu v. Romania, the Court focuses exclusively on accessibility and ignores the question of availability. Since the former is a prerequisite for the latter, the Court thereby deprives the Article from an important part of its substance.
One could make a parallel with the case of Golder v. the United Kingdom, in which the Court recognized that the right to a fair trial necessarily implied a “right to a Court”:
“Were Article 6 para. 1 (art. 6-1) to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government.”
Would the Court really consistently take the opposite position under Article 2 Protocol 1, allowing contemporary European states to wholly do away with educational facilities? Would the Court consider this to be an interpretation of the right to education in line with present-day conditions?
The issues raised by the judgment – a ‘negative’ vs. a ‘positive’ approach to Article 2 Protocol 1 – are moreover symptomatic of larger problem with the Court’s methodological toolbox. Especially when the provision of public services is concerned, the Court should not let its analysis be distorted by artificial legal constructs as negative vs. positive obligations, each of them having a problematic point of reference. Negative obligations take the status quo as a point of reference. This however is a dubious starting point, since there is no reason to presume that the status quo represents a fair distribution of public services. Positive obligations on the other hand have the total lack of state intervention as point of reference, which is irreconcilable with the reality and functions of contemporary welfare states. In a similar vein, Susan Bandes has held that taking “the complete lack of government involvement” as a point of reference “is sharply at odds with the reality of government as pervasive regulator and architect of a vast web of social, economic, and political strategies and choices” (“The Negative Constitution: A Critique”, Michigan Law Review 1990, 2271, 2284-2285).
Both a comparison with status quo as a comparison with the hypothetical zero state intervention scenario fail to engage with the central normative question raised by the right to education: what can be considered as an acceptable level of educational facilities in a contemporary European state? This question cannot be answered by sticking to a purely ‘negative’ interpretation of the right to education. Taking into account the need for re-integration of prisoners in society, would it really be such a bold move for the European Court to hold that Article 2 Protocol 1 requires that, “given the practical demands of imprisonment”, education must be adequately secured in prisons (mutatis mutandis Kudła v. Poland, concerning healthcare in prison)?