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THIRD
SECTION
DECISION
Application no.
31017/05
Marcel GROZA
against Romania
The
European Court of Human Rights (Third Section), sitting on
21 February 2012 as a Committee composed of:
Egbert
Myjer,
President,
Luis
López Guerra,
Kristina
Pardalos,
judges,
and
Marialena Tsirli,
Deputy
Section Registrar,
Having
regard to the above application lodged on 4 August 2005,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Marcel Groza, is a Romanian national who was born in
1959 and lives in Cluj-Napoca.
The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows:
1. Background information
- The
case concerns the special educational needs of the applicant’s
son, born in 1991 who suffers from his birth from the Little’s
disease. The boy lived only with his father since he was four when
his mother had left him.
- For
three years the applicant’s son attended a special school. The
applicant was not satisfied with the conditions offered by that
school alleging that the school personnel did not take care of
children and its curriculum was not adapted to the special needs
of his son.
- Moreover,
the applicant had a tense relationship with the manager of the
school. The latter lodged notifications with the competent
authorities on the applicant’s alleged abusive sexual behaviour
towards his son. A special commission for the protection of children
carried out an investigation and concluded that “the
notifications concerning a potential sexual abuse of the child had no
foundation”. On 26 April 2004 the applicant lodged a criminal
complaint against the manager for slanderous statements. The
Cluj Napoca District Court dismissed it on the ground that
the manager had acted without having the intent to damage the
reputation of the applicant.
- The
applicant also claimed that the attendance of the special school was
very difficult because besides psychical problems and motor
difficulties the child often suffered from breathing affections.
According to a medical certificate issued by the doctor who had the
boy in care since he was six years old, he suffered not only of
his chronic disease but also of multiple breathing affections
developed because of an immune deficit and an anaemic syndrome. He
was also affected by psychical problems because he had an obsessive
phobic personality. The doctor also mentioned that the boy had never
presented any trace of physical abuse.
2. The application for the enrolment of the applicant’s
son in a school providing education at home
- For
the reasons mentioned above the applicant decided to find another
school for his son. Therefore, at the beginning of 2003 he submitted
an application for enrolment of his son with a school located in
their city which offered education at home.
- According
to the applicable legislation the admission depended on the
authorisation granted by a special commission (“Comisia
pentru protecţia
copilului”). On 30 November 2004 the commission issued a
decision dismissing the applicant’s request and recommended the
enrolment of the child in a special school. It based its decision on
a thorough assessment of the child. According to a certificate
attached to the decision the child suffered from a severe neuromotor
deficiency.
The
commission also ordered the inclusion of the applicant and his son in
a program of psychological counselling.
3. Legal proceedings concerning the dismissal of the
application
- The
applicant was strongly opposed to this as he thought that it was more
adequately for his son to be educated at home. Therefore, he
challenged the decision in court alleging that the commission had
wrongly interpreted the applicable law. He stressed the role of the
parents in deciding the form of education for their children and
concluded that the commission’s decision was abusive as it did
not take into account the special needs of his son.
- On
28 February 2005 the Cluj County Court dismissed his complaint
holding that the conditions offered by the recommended school were
appropriate for his son’s special medical condition. It noted
that the applicant’s son did not attend any school in the year
2004 2005. It also stated that the special commission carried
out a thorough assessment of the child’s condition and made a
decision in the best interest of the child who needed to be included
in a form of education which ensured his socialisation and an
adequate treatment for motor recovery. Further it noted that
according to the information provided by the special school to which
he was assigned the transportation from home was ensured by school.
It concluded that the commission’s decision had not infringed
the father’s right to decide for his son and that the interest
of the child would not be protected by his isolation at home.
- The
applicant lodged an appeal on points of law claiming, inter alia,
that the special commission and the first-instance court had not
observed the legal provisions according to which a disabled child had
the right to be educated at home. In its observations the special
commission argued that it took into account the best interests of the
child, namely his enrolment in a school which could offer to him a
full package of specialised services, physical therapeutic sessions,
support groups, education, and socialisation without being deprived
of the contact with other children of his age. It further claimed
that by his opposition to the enrolment of his son in a special
school, the applicant had infringed his son’s right to
education exercising in an abusive way his parental rights.
- On
28 April 2005 the Cluj Court of Appeal dismissed the applicant’s
appeal on points of law. It noted that the decision of the special
commission had been based on a social investigation
(anchetă socială),
a medical report for establishing the degree of handicap, a
psychological report, a report of complex assessment of the disabled
child and medical certificates. It further noted that the last
psychological report drafted on 12 April 2005 revealed that
the child must attend a special establishment for physical recovery
combined with formal education which could allow the direct contact
with the doctor and the physical therapist, as well as his daily
interaction with other persons. It concluded that as the father had
not proved that he was able to ensure the necessary conditions for
his son, the latest’s education, specialist treatment and
socialisation would be better ensured by attending the special school
recommended by the commission.
4. Follow-up information about the applicant’s
son education
- According
to the latest information provided by the applicant on 3 March 2010,
he did not enrol his son in the recommended school. Accordingly, he
received no school education from 2004 until 2009.
- In
2009 the applicant was granted a request for education at home and
consequently he restarted school at 19 years in the fifth grade.
According to the applicant, his son’s physical condition had
deteriorated so much that he became incapable to be removed.
The
applicant did not provide detailed information or copies of the
documents concerning his new request for education at home.
B. Relevant domestic law
- According
to Article 29 § 6 of the Romanian Constitution
the parents have the right to ensure the education of their minor
children in conformity with their own convictions.
- Article 180
of the Education Act (Law no. 84/1995) provides that the parent
has the right to choose the form of education of his minor child.
- Article
18 § 1 (b) of the Emergency Government
Ordinance no. 102/1999 as subsequently amended by
Law no. 10/2003 into force at the material time stipulated
that the disabled children, incapable to be removed, were entitled to
benefit from education at home.
- Article 21
of Law no. 343/2004 provides for the obligation of the disabled
persons to observe the individual program for the recovery and social
reintegration established by the commission for the protection of the
child.
COMPLAINTS
- The
applicant complained under Article 6 § 1 of the
Convention about the unfairness of the proceedings, in particular
their outcome because of the incorrect interpretation by the domestic
courts of the applicable legislation.
- Relying
on Article 2 of Protocol No. 1 to the Convention, he
claimed that his son was refused access to a form of education
provided by law and adapted to his special needs by the abusive
decisions of the Romanian authorities.
THE LAW
- The
applicant complained that he is a victim of a breach of Article 2
of Protocol No. 1 to the Convention because his son had
been denied the right of access to education at home by Romanian
authorities. Article 2 of Protocol No. 1 to the
Convention reads as follows:
“No person shall be denied the right to
education.”
- The Court recalls that the right to education
guaranteed by the first sentence of Article 2 of Protocol
No. 1 to the Convention by its very nature calls for regulation
by the State, but such regulation must never injure the substance of
the right nor conflict with other rights enshrined in the Convention
or its Protocols.
- By binding themselves not to “deny the right to
education”, the Contracting States guarantee to anyone within
their jurisdiction a right of access to educational institutions
existing at a given time and the possibility of drawing, by official
recognition of the studies completed, profit from the education
received (see Kjeldsen, Busk Madsen and Pedersen v.
Denmark, 7 December 1976, § 52, Series A
no. 23 and the Case “relating to certain aspects of the
laws on the use of languages in education in Belgium”
(merits), 23 July 1968, pp. 31-32, § 4,
Series A no. 6).
- The
Court further recognised that in spite of its importance the right to
education is not absolute, but may be subject to limitations,
provided that there is no injury to the substance of the right
(Belgian Linguistics Case, cited above, p. 28, § 5 and
Campbell and Cosans v. the United Kingdom, 25 February
1982, § 41, Series A no. 48).
- In
this respect, it has been recognised that Article 2 of
Protocol No. 1 does not necessarily entail a right of
access to a particular educational institution (Simpson v. the
United Kingdom, no. 14688/89,
24 February 1998).
- Turning
to the circumstances of the instant case, the Court notes that the
request submitted by the applicant for enrolment of his son in a
school providing education at home was dismissed. A special
commission for the protection of the children, which according to
applicable legislation had to give a prior authorisation, disagreed
with the choice made by the applicant and recommended a special
school more adapted to the special needs of the child. It held that
the applicant’s son needed to be included in a form of
education which ensured his socialisation and an adequate treatment
for motor recovery.
- The
Court recalls that its task is that of a supervisory body as regards
the observance of the Convention. It is not its task to substitute
its decision or policy views for that of domestic authorities. While
these authorities must place weight on parental opinion, respect is
only due to opinions on the part of the parents which do not conflict
with the fundamental right of the child to education, the whole of
Article 2 of Protocol No. 1 to the Convention being
dominated by its first sentence.
- In
the instant case, the interests of the applicant’ son were
given precedence by the Romanian authorities and it was thought to be
in his best interest to place him in a special school which offered
not only transportation facilities but also an integrated package of
specialised services, physical therapeutic sessions, support groups,
education, socialisation without being deprived by the contact with
other children of his age. Thus, the special commission did the
assessment of his needs on the basis of specialist reports, such as:
a medical report for establishing the degree of handicap, a
psychological report, a report of complex assessment of the disabled
child and medical certificates. By a well reasoned decision
rendered on 28 April 2005, the Cluj Court of Appeal dismissed the
applicant’s complaint against the decision of the commission
holding that he had not proven that he could ensure similar or close
conditions at home to those offered by the special school.
- The
Court also notes that the applicant’s son remained at home
without any form of education for five years because his father did
not want to accept the decisions of the competent authorities to
attend a special school more adapted to his special needs. In these
circumstances, the Court finds that nothing can be imputed to the
Romanian authorities, which as results from the material examined in
the present file, observed the right of the applicant’s son to
have an as effective education as possible. It follows that this
complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
- The
applicant also complained that he had not had a fair hearing of his
case, contrary to Article 6 § 1 of the Convention. The
Court recalls that it is not called upon to examine the alleged
errors of facts and law committed by the domestic judicial
authorities, insofar as no unfairness of the proceedings can be
detected and the decisions reached cannot be considered arbitrary. On
the basis of the materials in its possession, and in view of its
conclusions concerning Article 2 of Protocol No. 1, the
Court concludes that within the framework of the proceedings, the
applicant was able to introduce all necessary arguments in defence of
his interests, and the
judicial authorities gave them due consideration. The decisions of
the domestic courts do not appear unreasonable or arbitrary.
Accordingly, the Court concludes that this complaint is manifestly
ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Egbert Myjer
Deputy
Registrar President
