FIFTH SECTION
DECISION
Application no. 17292/13
Guiomar QUINTANA SCHMIDT and Seyed Nader HASHEMI KAROVIE
against Germany
The European Court of Human Rights (Fifth Section), sitting on 8 October 2013 as a Committee composed of:
Ganna Yudkivska, President,
Angelika Nußberger,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 4 March 2013,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Guiomar Quintana Schmidt and Mr Seyed Nader Hashemi Karovie, are German nationals, who were born in 1962 and 1961 respectively and live in Speyer.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants have a son, born on 6 August 1998, who at the time the application was lodged attended the 8th class of a grammar school (Gymnasium). Final grammar school examinations (Abitur) can be taken after the 13th class.
On 27 July 2012, the applicants lodged a complaint with the Constitutional Court of the State of Rhineland-Palatinate. They complained that students’ identities were not made anonymous for the grammar school final examinations. They further complained that there was no review body for the assessment of the students’ performance in the examinations. Thereby, they argued, students may receive either preferential or discriminatory treatment in the examinations. Furthermore, they complained that the examination regulations allowed teachers to take examinations in subjects other than their own. The State Constitutional Court dismissed the complaint as inadmissible. The court held that the applicants had no right to complain. Neither the applicants nor their son were currently affected by the regulations governing the final examinations. The court emphasized that the son would be able to seek redress before the courts after having taken the examinations if he considers that his rights have been infringed. At the present time, it was not even certain that the son will ever take the final examinations (he may leave school before the 13th class) and that the respective regulations will still be in place then. For the same reasons, the court held, the applicants were not directly affected by the final school examination regulations. Finally, the court found that the applicants were not themselves affected by the examination regulations. The court emphasized in this regard that the applicants’ son will likely be of age by the time he might take the final examinations.
B. Relevant domestic law
The final examination consists of a written and an oral part. According to Section 19 § 5 of the grammar school final examination rules of the State of Rhineland-Palatinate of 21 July 2010, the examinee has to enter his personal details on the first page of the examination sheet in the written examination. Pursuant to Section 20 § 1 and § 2, the papers are evaluated individually and independently by two subject teachers.
According to Section 5 § 2, the oral examination board consists of three teachers of the school one of which has to be the subject teachers who has previously taught the examinee. Pursuant to Section 23 § 3, the examination is conducted by the subject teacher. The presiding teacher may conduct a part of the examination.
COMPLAINT
The applicants complained under Article 2 of Protocol no. 1 and Article 14 of the Convention that students’ identities were not made anonymous for grammar school final examinations. Furthermore, they complained that there was no review body for the assessment of the students’ performance in the examinations. Thereby, they argued, some students could be treated preferentially whereas others – for example with a migratory background – might be discriminated against. In addition, they complain that the examination regulations allowed teachers to take oral examinations in subjects other than their own.
They argue that it was neither reasonable nor efficient to require them to seek legal redress before the national courts only after their son has taken the examinations.
THE LAW
The Court reiterates at the outset, in order to be able to lodge a petition in pursuance of Article 34, a person must be able to claim “to be the victim of a violation [...] of the rights set forth in the Convention”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure or omission (see, among others, Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008). The Convention does not, therefore, permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Burden v. the United Kingdom, cited above, § 33). This is, however, what the applicants do in the present case. They complain about provisions governing school examinations which – in their view – leave room for discriminatory treatment of students. Thereby they invite the Court to undertake an abstract review of rules which – in their view – do not sufficiently rule out the possibility of discriminatory treatment in school examinations.
Considering that the “victim” criterion is not to be applied in a rigid, mechanical and inflexible way (cf. Micallef v. Malta [GC], no. 17056/06, § 45, ECHR 2009), the Court has held that the Convention entitles an individual to contend that a law violates his rights by itself, in the absence of an individual measure of implementation, if he runs the risk of being directly affected by it (see Norris v. Ireland, no. 10581/83, § 31, 26 October 1988; Johnston and others v. Ireland, no. 9697/82, § 42, 18 December 1986). This has been assumed, for example, if the applicant is required to either modify his conduct or risk being prosecuted (see Norris v. Ireland, cited above, § 31, concerning the existence of laws which make homosexual practices between consenting adult men criminal offences) or if a child’s right to inherit property from the mother is limited by a law applying automatically to all children born out of wedlock (see Marckx v. Belgium, no. 6833/74, § 27, 13 June 1979) or if the applicant establishes that there is a real risk that, in the not too distant future, he will be required to pay substantial inheritance tax which he would not face if he entered into marriage or civil partnership (see Burden v. the United Kingdom, cited above, § 35).
All these examples include individuals who are affected even without an individual measure of implementation. The carrying out of a school examination including the assessment of the student’s performance clearly is, however, such an individual measure of implementation against which means of legal redress are available before the domestic courts. The risk of the applicants’ son of being discriminated against in his final school examination at a future date – if he ever takes this examination – is hypothetical and in no way comparable to the cases in which the Court has previously assumed victim status despite the complaint being directed against a provision of national law or legislative omission only. The applicants are not challenging a legal position – like that of children born out of wedlock in the Marckx case cited above – but request legal protection against the hypothetical possibility of discriminatory treatment in the future.
In addition, it is noted that the applicants act on behalf of themselves and not, at least not expressly, on behalf of their son. Even though victim status may as a matter of principle be conferred by parental affiliation or it may be assumed that the applicants (also) wanted to act on behalf of their son, this does not change the above conclusion. The Court emphasizes that the son will very likely be of age by the time he might take his final school examinations and will be able to avail himself of the legal remedies then at his disposal under national law – including interim measures – in case he should feel discriminated against.
Against this background, the Court considers that the applicants cannot claim to be “victims” within the meaning of Article 34 of a potential future discriminatory treatment; neither on behalf of themselves nor on behalf of their son.
For this reason, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsGanna Yudkivska
Deputy RegistrarPresident
Full & Egal Universal Law Academy