FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 60781/00
by Slavic University in Bulgaria & Others
against Bulgaria
The European Court of Human Rights (First Section), sitting on 18 November 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrsS. Botoucharova,
MrA. Kovler,
MrK. Hajiyev,
MrD. Spielmann,
MrS. Jebens, judges,
and Mr S. Nielsen, Registrar,
Having regard to the above application lodged on 13 September 1999,
Having deliberated, decides as follows:
THE FACTS
The first applicant is the “Slavic University in Bulgaria”, a Bulgarian legal person (the “University”). It is represented before the Court by Mr A. Krastev, a lawyer practising in Sofia. The other applicants are 617 students and teachers listed in the annex (the “other applicants”, the “students” or the “teachers”). They have joined the application of the University without filing separate submissions with the Court.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 21 July 1995 the National Assembly, as a result of a private initiative, granted the University the status of higher education institution.
On 27 December 1995 a new Higher Education Act was adopted, which introduced a new statutory framework within which higher education institutions were required to function.
By decision of 15 February 1999 the Council of Ministers proposed to the National Assembly to revoke the status of a higher education institution of the University. As grounds for its proposal, the Council of Ministers indicated that, inter alia, (1) the University operated without internal rules and regulations, as well as without management bodies, elected in accordance with the law; (2) all its general assemblies had not been conducted in conformity with the statutory requirements; (3) it had been accepting students in violation of the State's university admission criteria, which were more than the maximum permissible number and for courses which had not been approved by the State; (4) the University had been appointing academic staff in violation of the applicable rules; (5) it had not had an approved budget prior to 1997 and after that had two budgets approved by two separate and competing administrative bodies; (6) it had been operating in violation of the Accountancy Act as it lacked a balance sheet for 1996 and did not have any accounting documents for 1995 and 1997. Allegedly the applicants were not officially informed of the procedure undertaken by the Council of Ministers.
On 22 February 1999 the University appealed against the decision of the Council of Ministers to the Supreme Administrative Court.
On 5 March 1999 the Supreme Administrative Court refused to examine the appeal. It found that the proposal by the Council of Ministers had no direct effect on the rights of the University as it was only a proposal to the National Assembly, was not therefore an individual administrative act and was not subject to judicial review. Upon further appeal, the extended panel of the Supreme Administrative Court, on an unspecified date, refused to examine the appeal on similar grounds.
By decision of 10 March 1999 the National Assembly revoked the status of the University as a higher education institution. It authorised the Council of Ministers to deal with all matters in connection with the revocation of the status of the University. It expressly addressed the option for the students to continue their studies at other universities, which subsequently led to the adoption by the Council of Ministers on 27 July 1999 of a special regulation which specified the procedures related thereto. No reasons for the decision of the National Assembly were given and the applicants were allegedly not informed of the procedure. The decision was promulgated on 16 March 1999.
On an unspecified date the University appealed against the decision of the National Assembly to the Supreme Administrative Court, arguing that it was an individual administrative act which was subject to judicial review. On 9 April 1999 the Supreme Administrative Court refused to examine the appeal on the basis that acts of the National Assembly were not subject to judicial review. Upon further appeal, on 28 May 1999 the extended panel of the Supreme Administrative Court also refused to examine the appeal on similar grounds.
The National Assembly's decision of 10 March 1999 was challenged before the Constitutional Court by fifty-four members of parliament. They argued that the decision was unconstitutional, that at the time it was adopted the University had corrected the alleged violations and that its operations had been in compliance with the statutory requirements. On 6 July 1999 six judges from the Constitutional Court voted in favour of declaring the decision of 10 March 1999 unconstitutional, whereas five judges voted against. Accordingly, as the Constitutional Court failed to obtain the seven votes required for a majority decision, the court rejected the challenge by judgment of the same day.
B. Relevant domestic law
1. The Constitution
The Constitution provides, inter alia, that citizens and organizations shall have the right to set up higher education institutions in accordance with the conditions and procedures established by statute and demands that the education they provide must comply with the requirements set by the State (Article 53 § 3). It also provides that the State shall exercise control over all forms and levels of education, including higher education institutions (Article 53 § 4).
2. The Higher Education Act of 1958
The Higher Education Act of 1958 (the “1958 Act”), which was in force at the time the University was established, regulated the establishment and functioning of higher education institutions. It did not differentiate between public and private institutions. The Act provided that higher education institutions were set up by the National Assembly. It also detailed the different grades of academic staff, determined their hierarchy and their relationship with the institutions. The status of students and their relationship with the higher education institutions was also regulated. The 1958 Act was repealed by the Higher Education Act of 1995.
3. The Higher Education Act of 1995
The Higher Education Act of 1995 (the “1995 Act”) regulates the establishment, functions, management and financing of higher education institutions, which could be public or private.
The 1995 Act, as in force during the relevant period, envisaged special control, supervisory and decision‑making functions for the legislature and the Government. For example, (1) the National Assembly created, transformed and closed higher education institutions; (2) the Council of Ministers developed and supervised implementation of Government policy in the sphere of higher education; approved academic qualification grades and the requirements towards all courses; determined the maximum number of undergraduates and postgraduates taught by each higher education institution and approved the rules for providing students with housing and other social benefits; (3) the Ministry of Education facilitated communication between the State and the higher education institutions and maintained the register of approved academic qualifications; (4) the National Accreditation Agency, a special administrative body created under the 1995 Act, was designated to monitor, assess and determine whether a particular higher education institution complied with the State's requirements. A lack of an accreditation or receipt of two negative assessments from this body was a basis for closing a higher education institution.
The 1995 Act, as in force during the relevant period, also regulated the management structure of State higher educational institutions, their hierarchy, procedures for appointment, term of office and powers. It also determined the conditions and requirements towards the teaching provided by higher educational institutions. The 1995 Act further provided that higher education institutions enjoy academic autonomy, which consisted of academic freedoms, academic self-government and sanctity of the territory of the institutions. Within this context, higher education institutions were required to adopt internal rules and regulations, which would include, inter alia, procedures for internal conflict resolution.
COMPLAINTS
1. All the applicants complain under Article 11 of the Convention that the University ceased its operations as a result of the decision of the National Assembly to revoke its status as a higher education institution, which infringed their right to freedom of association.
2. All the applicants complain under Article 6 of the Convention that they were denied access to a court in the determination of their civil rights and obligations in connection with the revocation of the University's status as a higher education institution. In particular, they maintain that they were not informed of the initiated procedure and were not afforded the opportunity to prepare a defence prior to the adoption of the decisions of the Council of Ministers and the National Assembly. In addition, they found it impossible to appeal against them.
3. All the applicants complain under Article 2 of Protocol No. 1 to the Convention that the right to education of the students was violated as a result of the decision of the National Assembly to revoke the University's status as a higher education institution.
4. All the applicants complain under Article 14 of the Convention that they were discriminated against as a result of the revocation of the University's status as a higher education institution.
THE LAW
The Court notes at the outset that it is unnecessary in the present case to decide on the University's legal standing, within the meaning of Article 34 of the Convention, as the application is in any event inadmissible for the following reasons.
A. Complaints under Article 11 of the Convention
The relevant part of Article 11 of the Convention provides:
“1. Everyone has the right ... to freedom of association with others ...
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...”
The Court considers that it is not necessary to decide on the specific complaints of infringement raised by the different groups of applicants, because it finds that they are all an integral part of one and the same body, namely the University.
According to the Court's case-law, a public law institution founded by the legislature is not an association within the meaning of Article 11 of the Convention (see Köll v. Austria (dec.), no. 43311/98, 4 July 2002; Sigurður A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, p. 13, § 31; Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, pp. 26-27, §§ 64-65).
In the Chassagnou and Others judgment the Court held that the term “association” in Article 11 of the Convention possesses an autonomous meaning and the classification in national law had only relative value (Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999‑III). In examining whether a specific organisation is an association within the meaning of Article 11 the Court must have regard to the reality of the situation and take into account various factors such as (1) whether it owes its existence to the will of parliament, (2) whether it is set up in accordance with the law on private associations, (3) whether it remains integrated within the structures of the State, (4) whether it enjoys prerogatives outside the orbit of ordinary law, such as administrative, rule-making or disciplinary, and (5) whether it employs processes of a public authority, like professional associations (Chassagnou and Others, cited above, § 101).
In addition, the Court notes that the Convention organs have previously stated that Swedish universities are public institutions (see M.A. v. Sweden, no. 32721/96, Commission decision of 14 January 1998, unreported).
In the present case, the University owed its existence to the will of the National Assembly, even though the initiative was a private one, by virtue of its decision of 21 July 1995. It differed from associations under private law as regards its structure and activities, its obligation to strictly comply with State policies in the field of higher education, its power to adopt internal rules and regulations with conflict resolutions provisions, the competences of the administrative authorities in supervising its teaching methods and the courses it offered, as well the social benefits provided to students. In particular, the National Assembly and the Government had special powers of supervision and control over the University's activities and the latter pursued aims which were in the general interest, namely the provision of higher education in compliance with and in adherence to State rules and requirements. Accordingly, the Court finds that during the relevant period the University “remained integrated within the structures of the State” and “enjoyed prerogatives outside the orbit of ordinary law” (Chassagnou and Others, cited above, § 101 and Le Compte, Van Leuven and De Meyere, cited above, § 64). In these circumstances, the Court concludes that the University was not an “association” within the meaning of Article 11 of the Convention.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
B. Complaints under Article 6 of the Convention
The relevant part of Article 6 § 1 of the Convention provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
In view of the Court's finding in respect of the applicants' complaints under Article 11 of the Convention and based on the reasons set out above, the Court considers that the decision to revoke the University's status as a higher education institution did not involve a determination of its civil rights and obligations.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
C. Complaints under Article 2 of Protocol No. 1 to the Convention
The relevant part of Article 2 of Protocol No. 1 to the Convention provides:
“No person shall be denied the right to education. ...”
At the outset, the Court notes that only the students can claim to have their right to education infringed. The University and the teachers cannot claim to be a victim of a violation under this article.
The Court recalls that as observed in the Belgian linguistic case the right not to be denied education serves merely to guarantee “to persons subject to the jurisdiction of the Contracting Parties the right, in principle to avail themselves of the means of instruction existing at a given time. The Convention lays down no specific obligations concerning the extent of these means and the manner of their organisation or subsidisation” (Belgian linguistic case (merits), judgment of 23 July 1968, Series A no. 6). In addition, the Court has previously concluded that the right envisaged in Article 2 of Protocol No. 1 to the Convention is concerned primarily with elementary education and not necessarily advanced studies (see Georgiou v. Greece (dec.), no. 45138/98, 13 January 2000 and X v. United Kingdom, no. 5962/72, Commission decision of 13 March 1975, Decisions and Reports 2, p. 50).
In view of the prevailing case-law and taking into account the facts in the present case the Court notes that the students were not denied their right under Article 2 of Protocol No. 1 to the Convention. Moreover, they were afforded the right to continue their advanced studies by transferring to other universities in Bulgaria after the University's status as a higher education institution was revoked.
Accordingly, the Court finds that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Complaints under Article 14 of the Convention
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] 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 other status.”
The Court notes that the applicants allege in very broad terms that they were the victims of discrimination as a result of the revocation of the University's status as a higher education institution. However, they do not indicate on what grounds they were allegedly being discriminated against, nor do they cite or infer the existence of analogous situations in which the participants were treated differently.
Accordingly, the Court finds that this complaint is unsubstantiated and therefore manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy