Information Note on the Court’s case-law No. 137
January 2011
Ali v. the United Kingdom - 40385/06
Judgment 11.1.2011 [Section IV]
Article 2 of Protocol No. 1
Right to education
Exclusion of pupil from secondary school for long period, on account of criminal investigation into an incident at school: no violation
Facts – In March 2001 a criminal investigation was initiated into a fire that had been started deliberately in the applicant’s school. The applicant, who was one of the suspects, was excluded from the school until the police investigation was completed. During the period of exclusion, the school sent him revision-based, self-assessing work in mathematics, English and science until May 2001, when he was permitted to attend school in order to sit examinations. In June 2001 the prosecution against the applicant was discontinued for lack of evidence. As the applicant’s parents did not attend a meeting in July 2001 proposed with a view to facilitating his re-integration, the head teacher advised them that she was removing the applicant from the school roll. In September 2001 he did not return to the school. His name remained on the roll until the middle of October 2001 although he was not provided with any education by the school during this period. In November 2001, when the applicant’s father finally requested his reinstatement, he was informed that his place had been allocated to a student on the waiting list. In January 2002 the applicant was admitted to a new school. He unsuccessfully complained before the domestic courts that his right to education had been violated.
Law – Article 2 of Protocol No. 1: A measure resulting in the suspension of a pupil for a temporary period for reasons unrelated to the school’s internal rules – such as a criminal investigation into an incident at the school – could be considered justified. The applicant’s exclusion had been both lawful and foreseeable, even though there had been some procedural irregularities. In particular, the school had failed to set a time-limit for the initial period of exclusion and to notify the applicant and his parents of their right of appeal to the governors; the governors had failed to hold a hearing; and the period of exclusion had been extended beyond the 45-day maximum. However, due consideration had to be given to the extremely difficult position in which the school had found itself on account of the continuing police investigation. After the expiry of the 45-day period, the legislation required it either to re-integrate the applicant or exclude him permanently. In practice, it could do neither. The applicant could not be re-integrated while the criminal investigation was ongoing, given that other pupils, and members of staff, were potential witnesses. But it would have been equally inappropriate for the school to have excluded him permanently when it had not been established that he had committed any offence. As to the proportionality of the measure, the Court had regard to factors such as the procedural safeguards in place to challenge the exclusion and to avoid arbitrariness; the duration of the exclusion; the extent of the cooperation shown by the pupil or his parents with respect to attempts to re-integrate him; the efforts of the school authorities to minimise the effects of exclusion and, in particular, the adequacy of alternative education provided by the school during the period of exclusion; and the extent to which the rights of any third parties had been engaged. The applicant had only been excluded until the termination of the criminal investigation. The fact that he had not been re-integrated into the school following the cessation of the criminal investigation was his fault or that of his parents, who had not attended the meeting proposed by the head teacher with a view to facilitating his re-integration. Moreover, the applicant had been offered alternative education during the period of exclusion, although he had not chosen to avail himself of this offer. While the alternative education did not cover the full national curriculum, it was adequate in view of the fact that the period of exclusion had at all times been considered temporary pending the outcome of the criminal investigation. Article 2 of Protocol No. 1 did not require schools to offer alternative education covering the full national curriculum to all pupils who had been temporarily excluded from school. However, the situation might well be different if a pupil of compulsory school age were to be permanently excluded from one school and were not able to subsequently secure full-time education in line with the national curriculum at another school. The applicant’s exclusion had therefore not amounted to a denial of the right to education and had not been disproportionate to the legitimate aim pursued.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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