AS TO THE ADMISSIBILITY OF
Application No. 29043/95
by Petra KARUS
against Italy
The European Commission of Human Rights (First Chamber) sitting
in private on 20 May 1998, the following members being present:
MM N. BRATZA, Acting President
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 September 1995
by Petra KARUS against Italy and registered on 2 November 1995 under
file No. 29043/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German national, currently residing in
Heidelberg. She is represented before the Commission by
Mr Ernesto Vecchio, a lawyer practising in Brindisi.
The facts of the present case, as submitted by the applicant, may
be summarized as follows.
The applicant, who was studying German and Italian languages and
literatures in Heidelberg, during the academic year 1993/94 attended
the University of Bari within the so-called "ERASMUS" program. She
later decided to continue her studies in Italy.
On an unspecified date the applicant passed the Italian language
and culture exam, which foreign students are required to pass prior to
enrolling in an Italian university.
On 30 November 1994 the applicant filed with the Bari University
her university curriculum, on the basis of which the Faculty Council
("Consiglio di Facoltà) was to decide which part, if any, of the
studies she had previously carried out in Germany could be validated,
that is to say which exams she would not be required to pass again.
The applicant further paid 215,000 Italian liras - representing
the first instalment of the inscription fees which amounted to 800,000
liras for foreign students - and thus enrolled in the University of
Bari.
Pending the decision of the Faculty Council as to whether and how
many of her German exams would be validated, the applicant did not know
which courses to attend. Accordingly she did not attend any.
On 14 April 1995 the applicant finally obtained a copy of the
decision of the Faculty Council, dated 14 February 1995, whereby only
two exams passed in Germany had been validated ("history of the Italian
language" and "history of the German language").
In the light of this decision and, in particular, of the
consequent necessity for her to pass again all the basic German grammar
and language exams, the applicant decided to abandon her studies in
Italy.
COMPLAINTS
1. The applicant complains, under Article 2 of Protocol No. 1, that
her right to education was violated. She submits that the delay of the
university administration in providing her with a decision as to which
of her previous exams would be validated effectively prevented her from
attending classes since she did not know which exams she would have to
pass at the end of the year. She also complains about the merits of
such decision.
2. The applicant further points out that an Italian student has to
pay an inscription fee which may vary between 0 and 900,000 Italian
liras depending upon criteria such as the student's family income, the
student's university curriculum, the student's place of origin etc.,
whereas a foreign student has to pay a fixed amount of 800,000 Italian
liras, which can be reduced by a maximum of 50% if the student submits
a certificate of indigence issued by the competent consulate.
The applicant thus complains that foreign students are
discriminated against in the enjoyment of their right to education, and
invokes Article 14 of the Convention.
3. The applicant finally complains, under Article 13, that there are
no remedies in Italian law to complain about the delays of the
university administration in deciding on her request to have the
previous exams validated; that there are no remedies to seek redress
of the merit of such decision and finally that there are no remedies
in respect of the above-mentioned discrimination against foreign
students.
THE LAW
1. The applicant complains, under Article 2 of Protocol No. 1
(P1-2), that her right to education was violated.
Article 2 of Protocol No. 1 (P1-2) to the Convention, insofar as
relevant, reads as follows:
"No person shall be denied the right to education."
The Commission recalls the Convention organs' case-law according
to which Article 2 of Protocol No. 1 (P1-2) guarantees, in the first
place, the right to access to educational institutions existing at a
given time, and the possibility of drawing benefit from the education
received. This right "by its very nature calls for regulation by the
State, regulation which may vary in time and place according to the
needs and resources of the community and of individuals. It goes
without saying that such regulation must never injure the substance of
the right to education nor conflict with other rights enshrined in the
Convention" (Eur. Court HR, Belgian Linguistic judgment of 23 July
1968, Series A no. 6, pp. 30-32, paras. 3-5; No. 14688/89, Dec.
4.12.89, D.R. 64, p. 188).
The Commission further recalls that from this provision flows
"the right to obtain, in conformity with the rules in force in each
State and in one form or another, official recognition of the studies
which he or she has completed". The recognition of completed studies
may be subject to an examination, in conformity with the rules in force
in each State (see. Eur. Court HR, Belgian Linguistic judgment,
loc. cit., pp. 31, 84).
The Commission recalls on the other hand that the right to
education contemplated in Article 2 of Protocol No. 1 (P1-2) mainly
concerns elementary education and not necessarily specialist advanced
studies (see, amongst others, No. 24515/94, Dec. 17.1.96, D.R. 84, p.
98; No. 14524/89, Dec. 6.1.93, D.R. 74, p. 14).
In the present case, the Commission notes that the applicant has
not been denied access to education, since she was allowed to enrol in
the University of Bari. The Commission further notes that the applicant
had to undergo an examination in Italian language and culture, and was
subsequently invited to submit her university curriculum to the Faculty
Council in order for the latter to proceed to the possible validation
of the applicant's previous studies, which is in accordance with the
rules in force in Italy (see mutatis mutandis No. 7864/77,
Dec. 9.10.78, D.R. 16, p. 82). The Commission observes that the
applicant's previous studies were in fact partly validated.
The point at issue is thus only the validation of specific exams
completed abroad.
The Commission considers however that, even assuming that a right
to obtain recognition of studies completed abroad or even of part of
the studies completed abroad may be derived from Article 2 of Protocol
No. 1 (P1-2), Article 2 (Art. 2) cannot be interpreted as guaranteeing
the right to obtain the validation of each exam completed abroad.
It follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant alleges discrimination against foreign students,
to the extent that the rules governing admission fees are different for
Italian nationals and foreigners.
In particular, the applicant points out that an Italian student
has to pay an admission fee which may vary between 0 and
900,000 Italian liras depending upon criteria such as the student's
family income, the student's university curriculum, the student's place
of origin etc., whereas a foreign student has to pay a fixed amount of
800,000 Italian liras, which can be reduced by a maximum of 50% if the
student submits a certificate of indigence issued by the competent
consulate.
Article 14 (Art. 14)of the Convention is worded as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or status."
The Commission recalls in the first place that Article 14
(Art. 14) has no independent existence, but plays an important role by
complementing the other normative provisions of the Convention. A
measure which is in itself in conformity with one of the normative
provisions of the Convention may, however, infringe that provision
taken in conjunction with Article 14 (Art. 14) if it is applied in a
discriminatory manner. It is therefore sufficient for the subject-
matter of the application to fall within the scope of an Article which
protects a particular freedom for it to be validly alleged that there
has been a violation of the principle of non-discrimination (see Eur.
Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31,
pp. 15-16, para. 32).
The Commission observes that in the present case the applicant
complains of the difference in the way the university tuition fees are
calculated for national and non-national students in Italy. The
discrimination is therefore invoked in respect of the right of access
to tertiary education.
Insofar as the complaint relates to the fact that it is left for
the consulates to assess the financial situation of the students, the
Commission considers that, even assuming that Article 2 of Protocol
No. 1 (P1-2) guarantees the right for foreigners to enrol in
universities abroad, the difference in treatment is founded on the
objective difficulties the University administration would encounter
should it have itself to assess the financial situation of the
students. The relevant consulates are clearly best placed to make this
assessment. The difference in treatment has therefore, in the
Commission's opinion, an objective and reasonable basis. It is true
that, unlike Italian students who qualify on financial grounds, foreign
students cannot obtain full exemption in respect of tuition fees.
However, the Commission considers that this difference in treatment has
an objective and reasonable justification, namely the much higher
degree of probability that foreign students will leave Italy on
completion of their studies, whereas students of Italian nationality
are, as a general proposition, more likely to remain in Italy where,
by applying the knowledge and skills which they have acquired at public
expense, they will be able to make a valuable contribution to Italian
society and in this manner repay, albeit in an indirect and
unquantifiable way, the financial investment from which they have
benefited.
Insofar as the complaint relates to the fact that foreign
students might have to pay higher fees than national students, the
Commission observes that the applicant has neither shown nor alleged
that she was effectively affected, namely that she would have paid less
had she been treated as a national student. The Commission therefore
finds that this aspect of the complaint does not disclose any
appearance of a violation of the provisions invoked.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant further invokes Article 13 (Art. 13).
Article 13 (Art. 13) of the Convention requires a remedy in
domestic law where an individual has an arguable claim to be the victim
of a violation of his rights under the Convention. An arguable claim
falls to be considered on the particular facts of each case and the
nature of the legal issue raised (cf. Eur. Court HR, Plattform "Ärzte
für das Leben" v. Austria judgment of 21 June 1988, Series A no. 139,
p. 11, paras. 25, 27).
In the light of its finding above in respect of the applicant's
complaints under Article 2 of Protocol No. 1 (P1-2) and under that
provision taken in conjunction with Article 14 (Art. P1-2+14) of the
Convention, the Commission does not find any prima facie issues under
the above-mentioned articles which could be considered as "arguable
claims" within the meaning of Article 13 (Art. 13). Consequently
Article 13 (Art. 13) does not apply in respect of the applicant's
complaints.
It follows that this complaint is likewise manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO N. BRATZA
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy