September 05, 2019
By Constantin Cojocariu
On 25 June 2019, the Court released an eagerly awaited judgment in the case of Stoian v. Romania, brought by a disabled child and his mother, who complained about the denial of the right to education. The Court, ruling as a Committee, rejected all claims, brutally ending an unprecedented litigation campaign on inclusive education that lasted a decade. While the judgment generated outcry among disability rights activists worldwide, it also displayed warning signs about procedural shortcuts taken by the Court and its approach to vulnerable applicants more widely. The judgment’s bottom line, that the fundamental rights of persons of disabilities are primarily a matter of resources that disqualifies them from protection under the Convention, is relatively unsurprising, though depressing and not befitting of a human rights court. What is more interesting is how the Court reached this verdict, by downgrading the case to the three-judge Committee level, by distorting the facts, by adopting the Government’s views wholesale and by refusing to apply meaningful scrutiny. In that sense, to some extent, what is lacking from the official record is more interesting than what was included. This is why an admittedly partisan account of the judgment such as the present one – I acted as the applicants’ co-counsel – may prove interesting to the readers of the Strasbourg Observers blog.
Facts and ruling
Ștefan is a young man with quadriplegia born in 2001 and Luminița Stoian his single mother. The case covers Ștefan’s enrolment at two schools in Bucharest – School no. 131 (Years 5 and 6, 2011-2013) and Eminescu High School (Years 9 and 10, 2015-2017). The applicants complained broadly that state schools failed to accommodate children with disabilities. The schools and their surroundings were mostly inaccessible for wheelchair users. Learning was not adapted, including with respect to teaching, testing or the curricula. The authorities fully expected Luminița to provide her son with personal assistance during school time. The range of therapies that Ștefan required were not available. The coordination between different agencies with duties in the area of inclusive education was poor. Individual educational planning was sub-standard and the supportive measures provided by the law were not made available in practice. These claims were backed by thousands of pages of evidence from correspondence and litigation that started in 2010 and continues to date.
A particularly serious incident that took place at School no. 131 was singled out. In response to increased demands for educational accommodations, the school attempted to persuade the applicants to accept home schooling. The headmaster accused Luminița of causing disruption and sought to restrict her presence in school, while not making alternative arrangements for providing Ștefan with personal assistance. The conflict came to a head on 3 April 2013, when two police officers, dispatched after a call from the headmaster, walked in during a class, grabbed Luminița, who at the time was helping her son, dragged her on the floor, handcuffed and took her to the police station, where she was held briefly before being released with a formal warning. Following the incident, the headmaster made it clear that the applicants were no longer welcome in his school.
At the end of 2013, the applicants lodged a complaint with the Court, with assorted claims on education, discrimination, the right to an effective remedy, and inhuman and degrading treatment. The case was communicated promptly on 11 July 2014, with a lengthy summary of facts and detailed questions. In 2016, Ștefan enrolled at the Eminescu School where he encountered similar problems as at School no. 131. The applicants submitted a supplementary complaint at the beginning of 2017, which the Court communicated on 14 June 2017. Multiple third party interventions had been submitted at this stage, by the Council of Europe Commissioner for Human Rights, the UN Special Rapporteur for on the Rights of Persons with Disabilities, Validity Foundation, International Disability Alliance, European Disability Forum and Amnesty International among others, signalling the importance of the case for the global disability rights movement.
In its judgment, the Court remarked that Ștefan had never been denied formal access to education, that some reasonable accommodation was provided and that courts intervened in a timely and adequate manner to correct any lapses. Moreover, the applicants themselves held the blame for some of the difficulties alleged. The Court emphasized that the national authorities were better placed to evaluate local circumstances and allocate resources in order to meet diverse educational needs. Accordingly, the Court rejected the claims regarding the right to education and the prohibition of discrimination. The Court also rejected the claim regarding the incident of 3 April 2013 as manifestly ill-founded, since the applicants failed to prove that the police used disproportionate force, or to pursue available domestic remedies.
Relegation to Committee level
The decision to entrust the case to a three-judge Committee is the first striking aspect about this judgment. This judicial formation was conceived as a means to relieve the Court from the burden of repetitive cases, where the underlying legal issues had already been solved and which had to be processed as efficiently as possible. The consequences of adjudication by a Committee are drastic: three as opposed to seven judges examine such cases, so the scrutiny applied is less thorough, and the decision taken is final and cannot be challenged. The decision to allocate this particular case to a Committee raises two questions, on procedure and on the scope of the ‘well-established case law’ criterion (WECL). The allocation procedure is underregulated, opaque and seemingly arbitrary. I was in touch with several lawyers who practise before the Court and who reported a variety of practices on allocation and notification, as well as differing degrees of involvement. In this particular case, the applicants were faced with a fait accompli, not having been aware that the case ended up before a Committee until the judgment was published. In contrast, the Government had been notified and was able to raise an objection (at §7). Thus, a significant procedural step was taken against the Government’s objection and without the applicant’s knowledge or involvement.
Allocation to a Committee is predicated on the existence of WECL. The Court failed to provide any reasoning for its decision and there has been no debate among the parties on this particular issue, as just mentioned. While the right to inclusive education has received a boost with the advent of the Convention on the Rights of Persons with Disabilities (CRPD), it raises complicated issues of law and practice. In contrast, the relevant disability jurisprudence under Article 2 of Protocol 1 is rudimentary at best, with two notable recent judgments (Enver Şahin or Çam v. Turkey, regarding the denial of access to an educational establishment) and a smattering of inadmissible cases. However, Stoian is materially different from those cases, in that it concerned the quality of education provided to a child with complex support needs and implicitly the scope of the accommodations required to facilitate his effective enjoyment of the right to education. The facts of the present case, which occasioned considerable and lengthy disagreement before domestic courts, raise a wealth of issues never before touched by the Court. The dynamics of an education case following a child growing up in real time, with multiple proceedings running in parallel before national and European jurisdictions is, to my knowledge, quite unprecedented. The Court’s assessment also stands in stark contrast with that of multiple interveners, prominent institutional actors in their own right, who clearly thought the case raised matters of great importance. Nor does the decision to allocate the case to a Committee make sense in context. To take a random example, the recently decided Glaisen v. Switzerland, involving a wheelchair user denied access to a cinema, was adjudicated by a Chamber, while Stoian, concerning eight years of denial of education, was decided by a Committee.
Cherry picking and twisting out of shape
The scaffolding of the Court’s reasoning stands on major contradictions and severely biased facts. With respect to remedies, the Court stated that “the domestic courts examined the applicants’ complaints exhaustively and gave judgment on all counts, allowing most of their claims and ordering the authorities to act upon them” (at §99). This statement does not stand up under scrutiny, if only based on the Court’s own account of the two sets of proceedings in question, regarding a request for a performance order and an interim injunction respectively. Domestic courts plainly found widespread failures to provide educational accommodations and ordered specific relief. However, these orders were hampered by delays and by relentless obstruction from the authorities’ part. The judgment regarding the request for a performance order became final on 7 February 2018. The Court itself noted that, faced with the authorities’ refusal to follow judicial orders, the applicants had to resort to bailiffs (at §58-62), unsuccessfully as it turned out. The judgment on the interim injunction became final on 25 July 2016. The Court itself noted that by 23 January 2018, that judgment was still not enforced, despite the bailiffs’ intervention (at §63-68). In any event, these judicial orders became moot once Ștefan moved to a new school on 30 August 2017, precisely because of the omissions highlighted before domestic courts, which the authorities refused to address. Domestic courts’ pronouncements in the applicants’ favour followed by non-execution should normally weigh against the Government, though the Court managed somehow to draw the opposite conclusion.
The applicants engaged in multiple proceedings throughout the years, evidencing the labyrinthine nature of educational provision for children with disabilities in Romania, targeting each authority with legal duties in the area, each school, year after year, since 2010. Litigation and correspondence resulted in enormous amounts of evidence, regularly submitted to the Court. In doing so, the applicants also attempted to address one of the objections raised in previous disability cases, which were dismissed for failure to provide national authorities with sufficient opportunity to address the claims in question (see for example Gherghina v. Romania). In these circumstances, it was all the more disappointing to see the official account of the facts severely truncated and based almost exclusively on the Government’s version of the facts.* Furthermore, the Court covered a large segment of the proceedings carried out at the domestic level in the most perfunctory manner (at § 55). Some of those proceedings are still pending after many years and some have been unsuccessful, exposing the Court’s assessment that domestic courts acted “quickly and adequately” to address the applicants’ claims, as wildly off-the-mark.
An abdication of responsibility
One consequence of the Court’s one-sided reception of the facts is that it unwittingly adopted some of the prejudice that infested domestic proceedings. For instance, the Court is more preoccupied to blame the applicants for their predicament, than to scrutinise the Government’s actions (“some of these difficulties were created by the applicants themselves,” at §107). This reflects a broader policy position at the national level, where the burden of caring for and supporting people with disabilities is placed predominantly on family members, with minimal concern for modifying physical and attitudinal barriers in society more widely. The utter lack of sympathy displayed by a human rights court towards a single mother and breadwinner, acting simultaneously as personal assistant, lawyer and teacher, who frequently had to physically carry her son to school on her back, is truly depressing.
While the Court paid lip service to the inclusive education principle and the right to reasonable accommodation, it refused to apply meaningful scrutiny, including by assessing the extent to which reasonable accommodation was actually provided with consideration to all relevant criteria, including individual circumstances and the “disproportionate and undue burden” criterion. Instead, the Court adopted the facts supplied by the Government wholesale, while ignoring the applicants’ submission and misconstruing the outcome of domestic proceedings that confirmed to a large extent their allegations. On a different plane, facts are indeed immaterial, seeing that the Court made it clear that any level of provision will do, regardless of individual needs, as long as formal access to educational facilities is in place (“the first applicant was never completely deprived of education”, at §105, or “the authorities did not turn a blind eye to the first applicant’s needs,” at §109). One is left wondering about the Court’s mission in these circumstances, as on this occasion at least it was largely reduced to rubberstamping domestic decisions and silencing the victims.
The manner in which the Court handled the applicants’ ill-treatment allegation is also baffling. On the one hand, the Court stated that the applicants failed to prove that the police officers used disproportionate force during the intervention that took place on 3 April 2013. It is difficult to reconcile this conclusion with the official forensic document submitted to the case file, certifying that Luminița sustained a brachial plexus injury necessitating 45 days of medical treatment, or the circumstances of a police operation that included violently handling a woman in front of a group of 10-year olds, including her son, not seriously challenged by the Government. On the other hand, the Court’s concomitant statement that the applicants “failed to pursue their domestic complaints within the time-limits set by law” is partially inaccurate. The authorities divided the investigation in several threads and generally acted in a dilatory and opaque manner. One strand of the investigation is still open, more than six years after the incident. Both aspects of the decision are inaccurate, while the decision to provide alternative explanations justifying the ‘manifestly ill-founded’ outcome, when either one would have been enough, succeeds in both diminishing and ridiculing the applicants’ lived experience and validating deeply problematic procedural practices at the domestic level.
Finally, another glaring oversight is the failure to supply any reasoning for dismissing the Article 13 claim, despite extensive and elaborate argumentation regarding the nature of remedies required in right to education cases regarding, contrasted with the convoluted proceedings available at the national level.
This judgment is the denouement of a series of dispiriting rulings from the Court in relation to disability rights, some of which have been reviewed on this blog (including, among many others, Dupin v. France, Delecolle v. France, Radi and Gherghina v. Romania or Glaisen v. Switzerland). The Court is backtracking furiously to a time before the adoption of the CRPD, when any measures designed to facilitate social inclusion of persons with disabilities were regarded by default as resource-intensive and therefore exceeding the material scope of the Convention. At the moment, applicants with disabilities and their allies are running out of options about what litigation strategies are likely to generate any sort of favourable outcome at the Court. On a different level, we see procedural shortcuts (single judge, ruling by committee, process-based review, etc.) being misused in order to further push vulnerable individuals out of sight and out of mind. This in turn begs of the question of the extent to which compromises made in these challenging times have been too great and are starting to damage the fabric of what is, at least in name, still a human rights court.
*I made some of my submissions and critical pieces of evidence available here.
Constantin Cojocariu is a human rights lawyer with fifteen years of experience litigating cases before the European Court of Human Rights on behalf of marginalised populations.