T.N.H. v. BULGARIA

Communicated on 10 December 2020

Published on 11 January 2020

FOURTH SECTION

Application no. 46519/20
T.N.H.
against Bulgaria
lodged on 14 October 2020

STATEMENT OF FACTS

The applicant, T.N.H., is a Bulgarian national, who was born in 2004 and lives in Sofia. He is represented before the Court by Mr Y. Georgiev, lawyer practising in Sofia. In the application form, the applicant’s father, Mr N.T.H., indicated his wish to act as his son’s “non-lawyer representative”.The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.Background

In 2011, which was the year when the applicant reached standard school age according to the Education Act (see the Relevant domestic law section), he started his elementary schooling in a municipal school. The school, which included the teaching of foreign languages as from first grade, was situated close to his home and was chosen by his parents. A report dated from September 2011 (the start of the school year) on an aptitude test, which the applicant had sat in March 2011 before being admitted in first grade, indicated that his readiness for school was borderline. In particular, he had demonstrated behavioural problems and certain cognitive dysfunctions which were expected to complicate the process of his learning and adapting in class. The report was signed by a medical practitioner, a psychologist, a speech therapist and the class teacher at the school to which the applicant was admitted.The applicant’s schooling in first and second grade

In October 2011 the applicant’s parents agreed with his school that a pedagogical adviser, provided by the school at no cost for the parents, would start working with him at the school with a view to facilitating his learning. It is unclear how frequently such work took place. The parents met with the adviser on three occasions and were told on one of them that the manner in which they were bringing the applicant up was flawed.

In December 2011 a school record signed by the pedagogical adviser and the applicant’s class teacher stated that the applicant had been experiencing systematic difficulties in his learning and adaptation to the school rules and community dynamic, and that the school had recommended to his parents that they undergo family counselling. The applicant’s parents were not convinced that their family environment was problematic and, while making sustained efforts to influence the applicant’s behaviour, did not seek family counselling.

Following a further deterioration of the applicant’s performance and of his ability to adapt to school, a meeting of the school commission for the prevention of anti-social conduct (“the school commission”) took place in March 2012 to discuss the situation. The director emphasised that the applicant’s poor reputation from kindergarten had preceded him and, as a result, some parents had disenrolled their children from first grade as soon as they had learned that the applicant would start his schooling there. According to the director, the school management had given the applicant a chance. His parents were warned on that occasion that he would be punished if he continued to misbehave. According to the applicant, his class teacher threatened to speak to the other children’s parents for them to write complaints against the applicant so he would have no other choice but leave the school. Following the applicant’s parents’ request for a record of the school commission’s conclusions, they were told that they were going to receive it so that they could turn to family counselling.

As they did not receive further information, the applicant’s parents turned to the Child Protection Department within the District Agency for Social Protection (“the Department”), alerting them that the applicant was not in a safe environment at his school and asking for assistance with identifying the problems at the origin of his behaviour. The Department directed them to Animus Foundation (“Animus” or “the foundation”), a public-interest association specialising in rehabilitation, counselling and psychotherapy.

Upon the initiative of Animus, a multidisciplinary meeting took place in April 2012, which involved representatives of the school, the applicant’s parents and specialists from the foundation. Some teachers stated that the applicant had been aggressive to his classmates and cried frequently in school. The school psychologist indicated that the child was emotionally and socially immature, and that in her view the balance of power in his family was inversed to the effect of the child having assumed what should be parental functions. Also during the meeting, a psychologist from Animus expressed dismay at the fact that, while the school representatives had noted that the applicant had various difficulties, they had failed for months to direct him to a specialist evaluation so that his physiological problem could be diagnosed, but had instead attributed the issues solely to his family environment and to the child-rearing methods employed by his parents.

In May 2012, during a meeting of the school’s pedagogical council, the director observed that the applicant was systematically disturbing the academic process in class, was bringing unauthorised objects to school, was hitting his classmates or bothering them in the boys’ bathroom, and had once cut a lock of hair of a classmate with a pair of scissors. The applicant’s mother stated during the meeting that she and the father, as well as psychologists, worked tirelessly to improve the applicant’s conduct and that the incidents of aggressive behaviour on his part were isolated. A number of teachers affirmed that the applicant was impossible to control, understood the rules but keenly disregarded them, wanted to be a leader and thus set the rest of the children against himself, refused to comply with teachers’ orders, was getting up from his desk and walking about in class, and shouted unpredictably. At the end of that meeting, the director of the school issued an order for “punishing the applicant with a warning for his transfer to a different school”. The punishment was effective as from the start of the following school year, namely September 2012.

Psychologists from Animus continued to work with the applicant throughout the summer of 2012 and directed him for assessment to a hospital specialising in child psychiatry. On 27 September 2012 the hospital doctors diagnosed the applicant as having attention deficit hyperactivity disorder and issued him with a medical certificate which stated that he had special educational needs.

The applicant’s parents informed the director of the school on 4 October 2012 about his condition and submitted the medical certificate issued by the hospital.

A meeting was organised at the initiative of Animus in October 2012 during which the applicant’s class teacher refused to deal with him. She voiced her opinion that, as she was the teacher to many children, she had to treat them all in the same way. The applicant’s father emphasised that his son’s class teacher was having a damaging effect on the child’s development because she was aggressive towards him. He stated that the teacher in the other class knew better how to deal with children with special educational needs. The parents’ proposal that he be moved to another class was rejected by the director whose only alternative proposal was for the applicant to follow an individual form of education with the same class teacher and be together with the other children during recess. The director pointed out that the school could provide a resource teacher for two hours a week. It was the school’s policy to have one child with special educational needs per class. Another representative of the school participating in the meeting stated that the school was among the first ones who worked with children with special educational needs. However, this only gave results when the parents cooperated. An example was given of a successful integration of a child with epilepsy and hyperactivity disorder. It was emphasised in that connection that that child’s mother had not visited the school only in order to blame the teachers and its management body.

On 15 October 2012 the Regional Inspectorate for Education, having been seized by the applicant’s father, recommended that the applicant follow integrated education in a mainstream school where he had to be assisted by a resource teacher, a speech therapist and a psychologist. On 16 October 2012 the applicant’s parents submitted that recommendation to his school director, emphasising in their accompanying letter that the recommendation was for integrated schooling. Despite that, the director insisted on an individual educational programme for the applicant.

According to the applicant, starting in early 2012 and throughout that year, he was subjected to regular insults and humiliations by his class teacher. He also faced daily reprimands by her and other teachers, who recorded incessant negative comments in relation to inadequate conduct or poor academic performance on his part, including on three separate occasions when he was physically absent from school for health reasons. He was once threatened and hit by a teacher, who also explained to his father that, if his child had special educational needs, he had to stay at home. On two occasions he was made to stand up for four hours in a row, with his back to the black-board in class, without water or permission to go to the toilet and with unclear reason for that punishment. Following a related complaint by the parents to the director, his class teacher threatened them that she “would write such a report to the applicant that it would only make him hop from school to school until he ended up in a labour-educational establishment for youths or in prison”. The attitude of the teachers ended up being transmitted to the other children in his class who frequently teased him and physically attacked him. At times the applicant was not allowed in class as a punishment and wandered about the school without supervision. He lost willingness and motivation to study, appeared anxious and fearful, and cried frequently at home refusing to go to school.

The applicant’s parents brought most instances of aggression towards their son to the attention of the director who allegedly did not react to the better part of them. They also complained to the Department in November and December 2012.

According to the applicant, although the school apparently put together a team of specialists to deal with his situation, it was not clear when the individual programme for his schooling had been prepared. Similarly, his parents were not acquainted with that programme nor were they involved in the process of implementing it, and the specialist team’s members did not coordinate with the school director or the applicant’s class teacher.Suspension of the applicant’s schooling

On 4 February 2013 doctors from the hospital specialising in child psychiatry recommended that the applicant interrupt his studies for the rest of the academic year. In particular, his continued attendance at school was disruptive for the school environment and was likewise not conducive to his positive personal development and his forming of a constructive attitude. Nonetheless, it would be beneficial for him not to cut his connection with school and to continue to have some classes with a resource teacher there.

In order to prevent a further deterioration of his mental state and well‑being, on 12 February 2013 the applicant’s parents asked the director for permission to suspend his studies for the rest of the school year. Two days later, on 14 February 2013, the director issued an order allowing the applicant’s suspension of his schooling for medical reasons, effective on the same day.

In May 2013, an expert commission of the State Agency for Child Protection issued a mandatory instruction to the director of the school. It was observed that, according to records in the school registers concerning the applicant’s elementary schooling before 14 February 2013, he had been reprimanded more than 85 times. The proposal of the school that he follow an individual programme had been rejected by his parents who preferred that he be integrated with the rest of the children. In an order of 14 February 2013 the director of the school had allowed the applicant to suspend his education. However, that order did not contain reference to the legal ground for suspension and, according to the law, schooling up to the age of sixteen was mandatory. The school leadership had thus interrupted the applicant’s education without ensuring, in breach of the applicable law, that it could continue in an individually-tailored format. Accordingly, the expert commission ordered the director to prepare and propose to the applicant’s parents, in writing, an individual programme which corresponded to his specific needs. The mandatory instruction contained also a methodological guide.

On 7 June 2013 the Ombudsperson of Bulgaria wrote to the applicant’s mother in response to an earlier complaint of hers. He observed that she had submitted a number of documents which clearly showed the absence of a supportive school environment for the applicant. While the child was with special educational needs, the investigation conducted by the Ombudsperson led to the conclusion that no efforts had been pursued to integrate him in the educational setting. The school had not only failed to put in place provisions so that the applicant’s individual needs were accounted for, but his stay there had led to aggravation of his mental and physical state, and to his absence from school for a number of months. The Ombudsperson had informed the Minister for Education of the situation and had invited the ministry staff to conduct an independent and thorough investigation. The applicant’s case was not isolated as, in general, schools in Bulgaria were not prepared to provide integrated schooling to children with special educational needs. The Ombudsperson concluded that the applicant’s right of access to an integrated educational environment was breached.Continuation of the applicant’s schooling

The applicant’s school issued a record on 10 June 2013, certifying that the applicant was moving to a new school upon his parents’ wish. Thereafter, the applicant continued, and successfully finished, his elementary education in a new school, where a support team was put together for him. He benefitted from the assistance of a resource teacher, of a speech therapist, of a psychologist and of a pedagogical adviser. His class teacher was attentive to him and he integrated well, to the effect that he scored better not only academically but also in behavioural terms.Proceedings for discrimination brought on behalf of the applicant

(a)   First decision by the Commission

In August 2013 the applicant’s parents brought proceedings before the Commission Against Discrimination (“the Commission”) on his behalf. They complained that their child had been subjected to discrimination, on the basis of his disability status, by the director and his class teacher in the school which he had attended for his first and second grade.

In a decision of 17 March 2015, a three-member formation of the Commission established that the failure of the school director to make an effort to integrate the applicant in the school environment, and her punishing him instead, had placed him in a less favourable position as compared to the other children. The Commission held that it was unacceptable for educational professionals dealing with a child with behavioural issues, such as the applicant, to resort to methods contrary to his best interest. The school’s director had failed to promptly investigate the applicant’s parents’ complaints of harassment and to take disciplinary action towards those found responsible for it. The absence of professional approach towards the applicant represented harassment under the Protection Against Discrimination Act (“the PADA”). That had hurt the applicant’s dignity and had created an offensive environment for him, which had resulted in discrimination under section 5 of the PADA on the ground both of his “personal status” and “disability status”.

The Commission fined the director with EUR 125. It also ordered her to take measures to eliminate all forms of discrimination at the school by any member of the pedagogical community and to make a copy of the PADA clearly visible and available for easy consultation.

(b)   Repeal in court

Upon an appeal by the director, in a decision of 10 February 2016 the Sofia Administrative City Court found that the Commission’s decision had been null and void. In particular, as the Commission had concluded that there had been two grounds for discrimination, namely “personal status” and “disability status”, the Commission should have heard the case in a five- instead of a three-member formation. The court returned the case to the Commission for a new examination in accordance with the court’s mandatory instructions related to the interpretation and application of the law.

(c)   Second decision by the Commission

In a decision of 21 December 2017, a five-member formation of the Commission found that there had been no discrimination in respect of the applicant by the school. In particular, the applicant, who had demonstrated significant difficulties already before being admitted to school, had behaved destructively and had endangered with his actions the well-being of the other children at the school. Following year-long attempts by the school’s management body at constructive dialogue with the parents, the applicant had been warned that he would be expelled and moved to another school. Thereafter, his parents had started bringing numerous complaints to various institutions.

The Commission concluded that there was no doubt that the school’s management had made all possible efforts to facilitate the applicant’s integration in school and to provide him with access to education, but had met with no assistance from the parents. The norms of acceptable behaviour in society had to be abided by all society’s members, irrespective of whether they had a status protected under the anti-discrimination law. If conduct which disturbed proper manners in society were left unsanctioned, that would lead to placing the rest of society’s members in a less-favourable position despite them abiding by the rules. Therefore, the personal interest of the applicant to have his conduct tolerated was overridden by the public interest to have the rest of the children undisturbed.

It was clear from the witness statements that the applicant had purely behavioural issues, such as showing aggression to other children without a reason, and that his conduct had provoked concern in his parents who had reacted by making numerous complaints. The parents’ attitude and actions had led to the applicant systematically provoking his class teacher, which had resulted in her being harassed by him. Discrimination was a clearly defined legal concept and could not be equated with the applicant’s parents’ dissatisfaction with the school authorities or displeasure with the latter’s actions.

(d)   First-instance court decision

The applicant challenged the Commission’s decision in court.

On 19 July 2019 the Sofia Administrative City Court rejected his appeal. The court observed that the applicant had demonstrated difficulties with his adaptation at school right from the very beginning when he had started first grade. A pedagogical adviser from the school, in addition to the class teacher, had met numerous times with the applicant’s parents. Despite all efforts, he had not learned how to comply with the disciplinary requirements in school. He had showed aggression towards his classmates and had endangered them and himself. Following a meeting of the school commission in March 2012, the school had directed the applicant’s parents to seek specialised advice. The warning to the applicant that he would be transferred to another school had been meted out as a punishment as result of his unlawful conduct and did not represent discriminatory treatment.

It had not been established that the school had treated the other children, who did not have special educational needs, more favourably than the applicant in identical instances where they had showed disregard for school discipline, or for the dignity of their classmates or teachers. It appeared that the applicant’s complaint was about the equal application of the law in comparable situations. However, the applicable law did not require more favourable treatment of the applicant because of his special needs. Quite the opposite, such difference in treatment would have represented discrimination by the school authorities within the meaning of the section 29(2) of the PADA (see the Relevant Domestic Law section below).

The school director had followed up on all complaints about harassment of the applicant at school, which was evidenced by the reprimand imposed by her on the applicant’s English teacher on one occasion. The measures pursued by the director, however, including the punishment of the applicant with a warning for his transfer to another school, had been perceived by the applicant’s parents as an expression of discrimination towards their son, or at the very least as being insufficient and missing the point.

Similarly, the applicant’s complaint about having being discriminated against also by being deprived of education had not been established. As soon as the applicant had been diagnosed as a child with special educational needs, his parents had been offered the opportunity for him to follow an individual educational programme. They had rejected the offer, insisting that he continue in the regular schooling format with assistance from a resource teacher, which had been made available by the school. The lack of trust by the applicant’s parents in the educational system, as well as their resistance and rejection of the measures proposed by the school, had significantly provoked the negative manifestations in the child’s behaviour.

Finally, the director’s order allowing the suspension of the applicant’s schooling had not breached his right to education, given that it had been issued on the basis of a medical recommendation and following the explicit request by the parents.

(e)   Last-instance court decision

Thereafter, in a judgment of 14 January 2020, the Supreme Court of Cassation (“the SAC”) rejected the applicant’s cassation appeal. It observed that the lower court had correctly applied the law and had reached the right conclusion that there had been no discrimination against the applicant. The reasoning of the lower court was shared by the SAC, so there was no need to repeat it.Relevant domestic lawNational Education Act

Under section 27 of the National Education Act 1991 (“the Education Act”), in force at the time of the events (and repealed in October 2015), children with special educational needs and/or with chronic medical conditions had to be taught in an integrated manner in mainstream schools which were obliged to accept them. Mainstream schools were all schools, including those with an “emphasis on” or “profile in” the arts, sports, music, languages, etc., with the exception of the “special” schools (section 26 of the Education Act). Special schools could be set up to cater for children with special educational needs and/or with chronic medical conditions, who were to be directed there only once all other options for their education in State or municipally run schools had been exhausted, and following a written request to that effect from their parents or guardians (section 27 of the Education Act). The special schools were of a boarding or semi‑boarding type (section 28 of the Education Act).

Section 10 of the Education Act provided that municipal schools were those financed from the municipal budget. They were opened and closed by an order of the Minister for Education upon the proposal of the municipality.

Section 7 of the Education Act provided that education up until the age of sixteen was mandatory. Section 6 of the Regulations for the Implementation of the Education Act (“the Regulations”) stated that schooling up until the age of sixteen followed a daily mode of education.

Under section 7(2) of the Education Act, the standard age for starting school is seven, whereby the child turns seven during the calendar year in which he or she starts school. Children who have turned six years of age can also start school, if their parents consider that their physical and mental development allows that.

Under section 6(2) the Regulations, schools provided education on an individual (индивидуална) or private (самостоятелна) basis to gifted students, as well as to students who, according to medical certification, could not be educated in a daily mode in a mainstream school.

Under section 6a of the Regulations, a “team for complex pedagogical evaluation“ was appointed every school year by the regional inspectorate for education. The team comprised a number of school professionals, including an expert in integrated education, a psychologist, a speech therapist, a resource teacher, a doctor, etc. That team examined individual cases and could recommend integrated schooling or schooling in a special school; it could also direct children with chronic conditions to medical establishments corresponding to their needs. The team could determine that there be up to two children with special educational needs per class. It could also make recommendations to directors of schools providing integrated schooling as regards the number and qualifications of the resource teachers. The team provided methodology assistance, coordination and control to the teams in the schools providing integrated schooling. The child’s parents, as well as a representative of the departments for child protection, take part in the work of that team.

Under section 7 of the Regulations, kindergartens and schools ensured a supportive environment for integrated education of children with special educational needs and/or chronic medical conditions.

Under section 37 of the Regulations, where students with special educational needs were taught in an integrated manner in schools, the director had to put together a team tasked with evaluating the educational needs of the children, with observing their development and with elaborating individual educational programmes for them. Such teams comprised the class teacher, a psychologist, a resource teacher, a specialist in pedagogy, a speech therapist and other teachers. The parents of the children in question had to participate in the work of the team.The PADA

Under section 29(2) of the PADA, the directors of educational establishments have to take effective measures to prevent all types of discrimination in the establishments perpetrated either by members of the academic or other staff, or by other students.

Under section 31 of the PADA, the director of an educational establishment who has received a complaint from a student who considered that he or she had been subjected to harassment by a member of the academic or other staff, or by other students, must investigate the complaint without delay and do what is necessary to end the harassment, including by taking disciplinary measures.Relevant international law and practiceThe Revised European Social Charter

The relevant provisions of the revised European Social Charter (“the Charter”), in force in respect of Bulgaria since 1 August 2000, read as follows:

Article 15 – The right of persons with disabilities to independence, social integration

and participation in the life of the community

With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:

1. to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private;

2. to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services;

3. to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.

According to the interpretation given by the European Committee of Social Rights to the provisions of the Charter, compiled in its Digest of 2018, Article 15 of the Charter reflects and advances the change in disability policy away from treating disabled persons as objects of pity and towards respecting them as equal citizens – an approach that the Council of Europe contributed to promote, with the adoption by the Committee of Ministers of Recommendation (92)6 of 1992 on a coherent policy for people with disabilities. Article 15 applies to all persons with disabilities regardless of the nature and origin of their disability and irrespective of their age. The Committee emphasised the importance of the non-discrimination norm in the disability context and found that this forms an integral part of Article 15 of the Charter. It is fortified in its views on Article 15 with reference to Article E on non-discrimination.

The Committee held that priority should be given to mainstream schools for the education of disabled children and adolescents. States Parties are required to provide the human assistance needed for the school career of the persons concerned. The margin of appreciation applies only to the means that States Parties deem most appropriate to ensure that this assistance is provided, bearing in mind the cultural, political or financial circumstances in which their education system operates. However, this is subject to the provision that, at all events, the choices made and the means adopted are not of a nature or are not applied in a way that deprives the established right of its effectiveness and turns it into a purely theoretical right.Recommendation of the Committee of Ministers

Recommendation Rec(2006)5 of the Committee of Ministers to Member States “on the Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society: Improving the Quality of Life of People with Disabilities in Europe 2006-2015”, was adopted on 5 April 2016. It aims to improve the quality of life of people with disabilities in Europe. It recommends a change of perspective whereby people with disabilities are regarded as citizens rather than patients. Thus their integrated social participation is emphasised and efforts to make this possible are called for. The Recommendation provides for several lines of action, one of which reads as follows:

Action line No. 4: Education

“3.4.1.    Introduction

Education is a basic factor in ensuring social inclusion and independence for all people, including those with disabilities. Social influences, for example from families and friends, also contribute, but for the purposes of this action line education shall cover all stages of life, including pre-school, primary, secondary, high school education and professional training, as well as life-long learning. The creation of opportunities for disabled people to participate in mainstream education is not only important for disabled people but will also benefit non-disabled people’s understanding of human diversity. Most education systems provide access to mainstream education and specialised educational structures for disabled people, as appropriate. Mainstream and specialised structures should be encouraged to work together to support disabled people in their local communities, but this should be consistent with the goal of full inclusion.

3.4.2.    Objectives

i.          To ensure that all persons, irrespective of the nature and degree of their impairment, have equal access to education, and develop their personality, talents, creativity and their intellectual and physical abilities to their full potential;

ii.         to ensure that disabled people have the opportunity to seek a place in mainstream education by encouraging relevant authorities to develop educational provision to meet the needs of their disabled population;

iii.         to support and promote lifelong learning for disabled people of all ages and facilitate efficient and effective transitions between each phase of their education and between education and employment;

iv.        to foster at all levels of the educational system, including in all children from an early age, an attitude of respect for the rights of people with disabilities.

3.4.3.    Specific actions by member states

i.          To promote legislation, policies and planning to prevent discrimination against children, young people and adults with disabilities in the access to all phases of their education from early years through to adult provision. In doing so, consult with disabled users, parents, and carers, voluntary organisations, and other relevant professional bodies, if appropriate;

ii.         to encourage and support the development of a unified education system, including mainstream and specialised educational provision, which promotes the sharing of expertise and greater inclusion of disabled children, young people and adults in the community;

iii.         to enable the early appropriate assessment of the special educational needs of disabled children, young people and adults to inform their educational provision and planning;

iv.        to monitor the implementation of individual education plans and facilitate a co-ordinated approach to education provision throughout and towards employment;

v.         to ensure that people with disabilities, including children, receive the support required, within the mainstream education system, to facilitate their effective education. In exceptional circumstances, where their professionally-assessed special education needs are not met within the mainstream education system, member states will ensure that effective alternative support measures are provided consistent with the goal of full inclusion. All special and mainstream provisions should encourage the transition to mainstream education and reflect the same goals and standards;

vi.        to encourage the development of initial and ongoing training for all professionals and staff working across all phases of education to incorporate disability awareness and the use of appropriate educational techniques and materials to support disabled pupils and students where appropriate;

vii.        to ensure that all educational material and schemes provided through the general educational system are accessible to persons with disabilities;

viii.       to include, in school civic education syllabuses, subjects relating to people with disabilities as people who have the same rights as all other citizens;

ix.        to ensure that disability awareness is a key part of education programmes in mainstream schools and institutions;

x.         to take steps to make places of education and training accessible for persons with disabilities, including by the provision of personal support and of reasonable adjustments (including equipment) to meet their needs;

xi.        to ensure that parents of disabled children are active partners in the process of the development of the individualised education plans of their children;

xii.        to ensure access to non-formal education allowing disabled youth to develop needed skills otherwise unattainable through formal education;

xiii.       to consider, where appropriate, signing and ratifying the European Social Charter (revised) (ETS No. 163), in particular Article 15.”

COMPLAINT

The applicant complains, in particular under Article 14 of the Convention, that the authorities – in the school where he spent the first two years of his elementary education – acted towards him in a grossly inadequate manner, including by mistreating him psychologically and physically, instead of dealing with him and organising his schooling in a way corresponding to his demonstrated special needs.

QUESTIONS TO THE PARTIES

1.  Was there a violation of the applicant’s right to respect for his private life under Article 8 of the Convention, and in particular his right to physical and psychological integrity and well-being, and to respect for his dignity?

2.  Did the authorities breach the applicant’s right to education, protected under Article 2 of Protocol No. 1 to the Convention?

3.  In his exercise of the rights protected under Article 8 of the Convention and Article 2 of Protocol No. 1 to the Convention, was the applicant a victim of discrimination in relation to his disability (special educational needs), in breach of Article 14 of the Convention, read in conjunction with the two provisions referred to above?

In particular, did the authorities treat the applicant less favourably because of his differences stemming from his special needs?

Alternatively, did the authorities take all measures that could reasonably be expected from them, and in good time, in order to assess, determine and respond appropriately to the applicant’s needs related to his condition, so as to ensure that, in the exercise of his rights under Article 8 of the Convention and Article 2 of Protocol No. 1, the applicant benefited from adjustments necessary to correct the factual inequalities between him and children who had no special educational needs (see, notably, Çam v. Turkey, no. 51500/08, § 65, 23 February 2016)?

The parties are invited to clarify what type of adjustment measures the school authorities put in place concerning the applicant’s education and at what point in time.

Full & Egal Universal Law Academy