The right to education in Transdniestria seven years after Catan and Others v. Moldova and Russia: are we there yet?

By Linda Hamid, Research Fellow at the Leuven Centre for Global Governance Studies – Institute for International Law, KU Leuven

On 4 December 2019, during a research stay in the Republic of Moldova, I travelled to the village of Doroțcaia, where I visited the ‘Ștefan cel Mare și Sfânt’ lyceum and met with the principal, Ms Eleonora Cercavschi. Until August 2002, the school had been situated in Grigoriopol, a small town in the Moldavian Republic of Transdniestria (MRT or Transdniestria), which is a breakaway region in Moldova that declared independence in 1991, but has not been recognized by the international community. However, in the wake of events that will be described below, the school was evacuated from its premises by MRT ‘police’ and forced to relocate 20 km away, in Moldovan-controlled territory. As can be gathered from this post’s title, the Grigoriopol lyceum is one of the Romanian-language schools in Transdniestria concerned by the landmark European Court of Human Rights (ECtHR or the Court) Grand Chamber judgment Catan and Others v. Moldova and Russia. Ms Cercavschi, who together with her daughter was one of the applicants in the case, graciously answered my questions and recounted the circumstances leading to the school’s predicament. This post is based on insights acquired from this discussion and a few other in-depth interviews with key actors in Moldova and Transdniestria, as well as an analysis of both legal and political texts.

In what follows, I will employ the Catan judgment to briefly illustrate the quandaries surrounding the (non-)execution of ECtHR judgments in circumstances as complex as those in Transdniestria, where various actors, State and non-state alike, vie for control and influence. Inside this tangled web, legally binding obligations arising from ECtHR judgments and political commitments extraneous to them may, at times, mutually reinforce each other to give some incidental effects to the former. This, however, does not transpire as traditionally envisioned by Article 46 of the European Convention on Human Rights (ECHR or Convention), i.e. through the execution of the judgment by the State bound by it, but rather indirectly, as a byproduct of two different but ultimately complementary processes. In referring to this byproduct, I will use the terms (indirect and partial) ‘implementation’ or ‘effects’. To me, they have a broader meaning than ‘execution’, in that they may also refer to the (persuasive) authority of the Court’s judgments and their influence on other actors than the State(s) directly bound to execute them, such as will be described in this post.

Continue reading

Stoian v. Romania: the Court’s drift on disability rights intensifies

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. Continue reading

Dupin v. France: the ECtHR going old school in its appraisal of inclusive education?

By Johan Lievens (VU Amsterdam) and Marie Spinoy (Leuven Centre for Public Law, KULeuven)

In Dupin v. France the European Court of Human Rights saw itself confronted with one of the key conflicts in education law: when parents and state officials disagree on which educational trajectory is best for a child with a disability, who gets the final say? This case concerned a mother fighting the decision of the French authorities to refuse her child, who has Autism Spectrum Disorder, access to a general school (through a form of inclusive education). Instead, the child was referred to an ‘Institut medico-éducatif’, an institution established to provide care and a specialized type of education to children with an intellectual impairment. Seemingly going back on its prior case law, the Court did not consider the right to education of the child to be violated. Continue reading

Disability and University (pragmatic) Activism: the pros and cons of Enver Şahin v Turkey

By Joseph Damamme, PhD candidate at the Centre of European Law of the Université libre de Bruxelles, member of the Equality Law Clinic & Advisor to Counsel (Constantin Cojocariu) in the case of Gherghina v Romania.

Economic and time constraints are often used as a justification for refusing or delaying necessary changes to the environment that would allow persons with disabilities to be more included in society. A balancing exercise between these constraints and the rights of these individuals was the subject of the ECtHR Chamber judgment Enver Şahin v Turkey (only available in French for now). Therein, the Court clarified somehow the content and contours of the State’s (and the University’s) responsibility, when faced with accessibility requests by their students with disabilities. The positive outcome of the Court’s ruling contrasts with some missed opportunities and unanswered questions that are addressed by Judge Lemmens in his valuable dissenting opinion. Continue reading

Religious signs in public schools: Belgian Council of State shows judicial bravery

Co-authored by Yousra Benfquih* and Saïla Ouald Chaib**

As in many other countries in Europe, the wearing of religious signs has been the topic of heated debate in Belgium. This has been the case for public servants, teachers, employees in private firms and the wearing of religious signs by pupils in school. It is the latter issue that was the subject of two recent judgments of the Belgian Council of State (Conseil d’Etat, Belgium’s highest administrative court), judgments that might prove to mark a watershed in the Belgian discourse on headscarf bans, freedom of religion and the right to education of pupils. (The judgments are in Dutch and can be found here and here)[1] The judgments are furthermore interesting because of their inclusive comprehension of neutrality through systematic reference to the case law of the European Court of Human Rights. This post will start by briefly shedding light on the structure of the Belgian education system and the implementation of a ban on religious signs in Flanders. We will subsequently highlight the crucial parts of the judgments of the Council of State (hereafter ‘the Council’) and conclude with some reflections.

Continue reading

Mansur Yalçın v. Turkey: religious education and the (easy) way out

This guest post was written by Yousra Benfquih, FWO aspirant, PhD Fellow Research Foundation Flanders at the University of Antwerp.

In the case of Mansur Yalçın v. Turkey, 14 Turkish nationals living in Istanbul who are adherents of the Alevi faith, complained before the Court that the way in which the religion and ethics class – a compulsory subject in primary and secondary public education under article 24 of the Turkish Constitution – was taught, violated Article 2 of Protocol No. 1. In this connection, they moreover put forward a violation of Articles 9 and 14 of the Convention. Continue reading

Education in prison: right to education only protects access in case of ‘existing’ educational facilities (Velyo Velev v. Bulgaria)

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. Continue reading

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.

Continue reading

Horváth and Kiss v. Hungary: a strong new Roma school segregation case

The Strasbourg Court has once more delivered a judgment in a Roma school segregation case. The applicants in Horváth and Kiss v. Hungary are two young Roma men, who were diagnosed as having mild mental disabilities when they were children. As a result of these diagnoses, they were placed in a remedial school. Their education there was poor: the curriculum was underdeveloped, their schooling did not give them access to the type of job they wanted, and they ended up de facto segregated from the wider population. The applicants claim that their education in the remedial school constituted ethnic discrimination in their enjoyment of their right to education (Article 2 Protocol 1 in conjunction with Article 14 ECHR). The Strasbourg Court rules that they’re right: it finds a violation of the Convention on the ground of indirect ethnic discrimination.

Much of the reasoning in this case is familiar from other Roma school segregation cases, such as, notably, D.H. and Others v. Czech Republic (2007) and Oršuš and Others v. Croatia (2010). In this post, I will discuss the judgment and try to highlight what’s new in the Court’s reasoning. Continue reading

Immigration, education and integration. A cloudy combination. (Anatoliy Ponomaryov and Vitaliy Ponomaryov v. Bulgaria)

Immigration was a challenge in the past, is still a challenge now and will probably remain a challenge in the future for policy makers as well as for judges. Especially when it comes to public services for individuals staying irregularly in a country, this issue becomes more difficult. Can the regular or irregular stay of an individual in a country justify a differential treatment in access to basic services such as health care and education? In Bulgaria, individuals who do not have a permanent residence permit have to pay a school fee while Bulgarian citizens and individuals having such a permit enjoy education free of charge. This was the issue the European Court of Human Rights was confronted with in the recent case of Anatoliy Ponomaryov and Vitaliy Ponomaryov v. Bulgaria. Continue reading

Lautsi v. Italy: the Argument from Neutrality

Lautsi v. Italy was destined to achieve legendary status in the ECtHR’s case law. In fact, it became the stuff of legends long before the Grand Chamber’s judgment came out. Rarely has a judgment of a supranational court put such a spell on people. Rarely has it inspired such passionate comments and speculation even before it was released. Rarely have so many people looked forward to a judgment with such anxious anticipation. But why? What is it about the issues involved in this case that causes it to speak so strongly to the hearts and minds of so many? It is a question I have been asking myself for a while now, while reflecting on the tension between freedom of and freedom from religion in the Court’s case law. And the question is haunting me now more than ever, having read the Lautsi judgment and the comments in the blogosphere thereon and preparing a post of my own. I have not been able to come up with a satisfactory answer to the question. At least not satisfactory to a legal mind. My personal preoccupation with Lautsi seems to stem from a strong conviction that neutrality requires that the state should not hang crucifixes on the walls in public schools. I will attempt to explain my opinion in this post. But I will also explain why this is perhaps not an issue to be decided by a human rights court.

Continue reading