AS TO THE ADMISSIBILITY OF
Application No. 25212/94
by Martin KLERKS
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 4 July 1995 the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, 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 6 June 1994 by
Martin KLERKS against the Netherlands and registered on 20 September
1994 under file No. 25212/94;
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 Dutch national, born in 1951, and currently
resides in Leiderdorp, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The eldest of the applicant's two children, Ruben, born in 1981,
is almost entirely deaf. From 1985 until May 1987 he went to a special
school for the deaf in the town of Voorburg. As his parents were of the
opinion that he made no progress at this school and they did not agree
with the teaching methods, they sent Ruben to a special school for the
hard of hearing in the town of Rijswijk in May 1987.
Ruben's parents were very pleased with the progress made by their
son at this school. However, following two assessments of Ruben during
the school year, his parents were informed on 17 June 1988 that he
would not be allowed to continue at the school. It was held that Ruben
should go to a school for the deaf.
The applicant and his wife filed an objection with the school
board against the decision of 17 June 1988. In August 1988 the school
board decided to allow Ruben to stay on for one more year but, unless
significant progress was shown, he would not be allowed to continue at
the school after that time.
On 19 July 1989 the school again informed the parents that Ruben
would not be allowed to continue at the school. An objection filed by
his parents against this decision was rejected on 26 September 1989.
On 2 October 1989, Ruben was refused entry to the school upon which his
parents instigated summary proceedings with the President of the
Regional Court (Arrondissementsrechtbank) of The Hague in order to
obtain an injunction forcing the school to admit Ruben.
The President refused to grant an injunction on 17 October 1989.
An appeal was filed against this decision and pending the appeal
proceedings Ruben was admitted to a regular denominational primary
school in his home town. It appears that the appeal was later
withdrawn.
In the spring of 1990 the applicant attempted to register his son
at another special school for the hard of hearing in the town of
Leiden. This school required Ruben to undergo certain tests before
deciding whether he could be admitted. As Ruben's parents felt that
their son had already undergone too many tests they requested the
Inspector General for Special Primary and Secondary Education of the
Ministry of Education and Science (Hoofdinspecteur Speciaal
Onderwijs/Voortgezet Speciaal Onderwijs van het Ministerie van
Onderwijs en Wetenschappen) on 3 May 1990 to decide that Ruben be
admitted to the school without taking the required tests.
The Inspector General, by reply of 15 May 1990, informed the
applicant that he was not competent to make such a decision and advised
to have Ruben undergo the required tests. On 25 May 1990 the applicant
filed an appeal against this decision with the Judicial Division of the
Council of State (Afdeling Rechtspraak van de Raad van State).
On 29 October 1990 the President of the Judicial Division
declared the appeal inadmissible in simplified proceedings
(vereenvoudigde behandeling). The President held that, since the
Inspector General was not competent to order the admittance of the
applicant's son to a school, his letter of 15 May 1990 could not be
regarded as a decision against which an appeal could be filed.
The applicant filed an objection against the President's decision
with the Judicial Division on 2 November 1990, but this was rejected
by decision of 21 February 1991.
In the meantime, Ruben's parents requested the board of the
denominational primary school in his home town that he be allowed to
continue there after the summer holidays of 1990 as they were of the
opinion that their son benefited greatly from being educated among able
children. On 13 August 1990 the school board refused this request,
holding that the school was unable to cater sufficiently for Ruben's
needs without disrupting the educational needs of the other pupils.
The applicant and his wife filed an objection with the school
board and informed the school that, given the short period of time
between the school's refusal and the beginning of the new school term,
Ruben would be sent to the school. On 3 September 1990, Ruben was
refused entrance to the school and taken home by police.
On 11 September 1990, the applicant requested the Municipal
Executive (College van Burgemeester en Wethouders) of Leiderdorp to
ensure Ruben's registration at a regular State primary school in that
town. The Municipal Executive refused to comply with this request by
letter of 19 November 1990. The Municipal Executive subsequently
informed the Child Care and Protection Board (Raad voor de Kinder-
bescherming) and the Prosecution Department (Openbaar Ministerie) of
the fact that Ruben was not attending school contrary to the provisions
of the Compulsory Education Act (Leerplichtwet).
The applicant was convicted on 2 December 1991 by the Leiden
District Court (Kantongerecht) for not registering his son at a school
contrary to the Compulsory Education Act and sentenced to a fine of
1,000 Dutch guilders, of which 900 Dutch guilders were suspended on the
condition that the applicant cooperate in an examination of which type
of school would be most appropriate for Ruben's needs. The applicant
filed an appeal against this decision with the Regional Court of The
Hague.
Following assessments of Ruben on 14 February and 13 March 1992
it was concluded that he should go to a school for the deaf. Ruben's
parents did not agree with the methods and result of the assessment but
consented to their son going to a school for the deaf in Amsterdam as
of September 1992, while they would continue to look for a school
which, in their opinion, would be better suited to Ruben's needs. For
this reason, the Juvenile Court Judge (Kinderrechter) of The Hague
Regional Court did not issue a family supervision order (ondertoezicht-
stelling) as requested by the Child Care and Protection Board.
On 13 April 1993, the Regional Court of The Hague, in the
criminal proceedings against the applicant, quashed the decision of the
Leiden District Court of 2 December 1991, convicted the applicant of
contravening the Compulsory Education Act and sentenced him to a fine
of 3,000 Dutch guilders, of which 2,000 Dutch guilders suspended.
The applicant filed an appeal in cassation against the Regional
Court's judgment of 13 April 1993. On 1 March 1994 the Supreme Court
(Hoge Raad) rejected the appeal in cassation.
A request for a pardon (gratie) was rejected by the Minister of
Justice (Minister van Justitie) on 25 January 1995.
At present Ruben attends a denominational Technical School in
Voorhout, close to his home town; this is apparently the only regular
school willing to admit him.
COMPLAINT
The applicant complains that his son was not allowed to be
educated at a regular school in his home town. He invokes Article 2 of
Protocol No. 1 to the Convention.
THE LAW
The applicant complains under Article 2 of Protocol No. 1 (P1-2)
of not being allowed to send his disabled son to a regular school of
his choice.
Article 2 of Protocol No. 1 (P1-2) to the Convention provides:
"No person shall be denied the right to education. In the
exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right of
parents to ensure such education and teaching in conformity with
their own religious and philosophical convictions."
The Commission leaves open the question whether the applicant's
disagreement with the education authorities about the appropriate
school for Ruben could be said to be based on philosophical convictions
rather than a difference of view as to the best way of providing Ruben
with an education. Even assuming that the applicant's philosophical
convictions may be at issue in the present case, the Commission refers
to the dominant character of the child's right to education in
Article 2 of Protocol No. 1 (P1-2)to the Convention (cf. Eur. Court
H.R., Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976,
Series A no. 23, p. 25, para. 52).
The second sentence of Article 2 (P1-2) requires the State in
exercising any educational function to ensure that the education and
teaching of a child is as far as possible in conformity with the
parents' religious and philosophical convictions. This requirement
extends not only to the matter taught but to other aspects of the
educational function (cf. Eur. Court H.R., Campbell and Cosans judgment
of 25 February 1982, Series A no. 48, p. 14, para. 33). It does not,
however, require the State to provide special facilities to accommodate
particular convictions though it may affect the use of existing
facilities (cf. No. 13887/88, Dec. 5.2.90, D.R. 64 p. 158).
The Commission observes that there is an increasing body of
opinion which holds that, whenever possible, disabled children should
be brought up with normal children of their own age. The Commission
recognises, however, that this policy cannot apply to all handicapped
children. It further recognises that there must be a wide measure of
discretion left to the appropriate authorities as to how to make the
best use possible of the resources available to them in the interests
of disabled children generally. While these authorities must place
weight on parental convictions, it cannot be said that the second
sentence of Article 2 (P1-2) requires the placing of a child with a
serious hearing impairment in a regular school (either with the expense
of additional teaching staff which would be needed or to the detriment
of the other pupils) rather than in an available place in a special
school (cf. No. 14135/88, Dec. 2.10.89, D.R. 62 p. 292).
In the present case the Commission notes that on several
occasions and by different authorities it was found that Ruben's needs
would be best catered for in a school for the deaf. Although it has not
been disputed that Ruben functioned well in the regular primary school
in his home town where he was admitted on a temporary basis, the
Commission finds that this did not preclude the school's authorities
from having regard to the available resources and the interests of the
other children in the school when they decided not to allow Ruben to
continue at the school. Furthermore, it appears that Ruben at present
attends a regular school without experiencing opposition from any
educational authority.
In these circumstances, the Commission finds that the domestic
authorities have respected the applicant's views, as well as Ruben's
right to have as effective an education as possible. The Commission
concludes that the present case does not disclose any appearance of a
violation of Article 2 of Protocol No. 1 (P1-2) to the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
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