CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 novembre 2001

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Ress , President ,   Mr   I. Cabral Barreto ,   Mr   P. Kūris ,   Mr   B. Zupančič ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa - Nikolovska ,   Mr   K. Traja , judges , and Mr V. Berger , Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 12 September 1998 and registered on 23   October 2000, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having deliberated, decides as follows: THE FACTS The applicant, Mr Fatmir Skender, Turkish by birth, is a national of the Former Yugoslav Republic of Macedonia. He was born in 1966 and lives in the village of Mal Papradnik, Centar Župa. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case According to the Primary Education Act the pupils have to attend State primary schools in their place of residence. However, in the school situated in the applicant’s district Centar Župa no classes in Turkish were available. Between September and 18 December 1996 the applicant’s older daughter attended the primary school in the village of Kođađik in a different district, where education in Turkish was provided. However, on 19 December 1996 classes were allegedly interrupted by the police and the school director announced that pupils from other villages were no longer allowed to attend classes in the Kođađik school. 2.     Provision of education in Turkish in the applicant’s district On 11 June 1997 the Ministry of Education and Sport (hereinafter referred to as the Ministry) refused the applicant’s request of April 1997 to provide education in Turkish in Centar Župa. It stated, inter alia, the following: “... we inform you that the Council of Ministers ... [on] 2 September 1996 decided the following: 1. The Ministry of Education and Sport is responsible for providing education in the primary schools in the Municipality of Debar - Centar Župa in accordance with the Constitution and the Primary Education Act. 2. ... [education in] Macedonian cannot be replaced by [education in] Turkish [in Centar Župa], as the children have not been speaking Turkish before they started attending the school.   3. The Ministry ... is instructed to inform the parents of the pupils who boycotted the classes ... and request the [pupils] to return to the school [in Centar Župa] where special courses will be given so that [they could] catch up with the rest ... The Ministry of Education and Sport urges that your children attend the courses in the [primary school]... in Centar Župa in accordance with the Primary Education Act” On 31 August 1999 the Ministry decided to provide education in Turkish in the school in Centar Župa for the pupils whose mother tongue was Turkish in accordance with the Council of Minister’s decision of 10   August   1999. On 17 May 2000 the political party “Liga za Demokratija” and the associations of citizens “The World Macedonian Congress” and “the Association of the Macedonians with Muslim Religion in Macedonia” asked the Constitutional Court to examine the constitutionality of the Council of Minister’s decision of 10 August 1999 and the respective Ministry’s decision of 31 August 1999. On 5 July 2000 the Constitutional Court declared the decisions null and void on the following grounds: “... ...it, inter alia, appears that (1) the impugned acts determined that Turkish was the mother tongue of all the pupils [residing in] the municipality of Centar Župa ... 5. Under Article 48 § 4 of the Constitution the members of the national minorities have the right to education in their language in primary and secondary schools in accordance with the respective law. In the schools where the education is in the languages of the minorities, the Macedonian language shall be studied as well. It follows that the members of the minorities are educated in the primary and secondary schools in their language, and that is, according to the court, the language of their choice [which they use] in their everyday life. Therefore, the provision of the Constitution established objective criteria for the fulfilment of the right to education of the national minorities in their language [which] does not depend on the subjective will of the State bodies... The impugned acts provide education in Turkish for the pupils in the municipality of Centar Župa who use the Macedonian language of their choice in their everyday communications and, thereby, express their national identity, and who do not use the Turkish language in their everyday communications and of their choice. Thus, [the acts] exceeded the boundaries of the Constitutional framework setting out the rights of the national minorities to education in their language (Article 48 § 4 of the Constitution) and inhibited the achievement of the purpose of education - to provide knowledge, and impinged upon the very content of the right to education, i.e., the [right to] education is being manipulated with the purpose of changing the national identity of a number of pupils in the municipality. Therefore, the court finds that the impugned acts are not in conformity with the aforementioned Constitutional provision. ...” 3.     Enrolment of the applicant’s older daughter in a Turkish-speaking school in a different district On 22 February 1997 the applicant asked the Kođađik school to admit his older daughter. Since he received no reply, on 20 March 1997 he complained to the Second Instance Government Commission (hereinafter referred to as the Commission). On 22 May 1997 the applicant alleges that he complained again to the Commission. No reply was received by the applicant. On 4 June 1997 the applicant brought administrative proceedings before the Supreme Court, arguing that his daughter had the right to education in Turkish. On 16 June 1997 the Kođađik school refused to enrol the applicant’s older daughter as the applicant’s place of residence was in a different district. On 25 June 1997 the applicant transmitted the reply to the Supreme Court. On 8 October 1997 the Supreme Court refused to examine the applicant’s complaint on the merits in respect of the Kođađik school’s refusal to enrol his older daughter. It, inter alia, stated: “... Under Section 26 § 1 of the Administrative Disputes Act if the second instance administrative body does not pass a decision within sixty days, and on the person’s repeated request to act does not reply within seven days, the person may institute administrative proceedings... ... it cannot be established from the submitted documents that the [second instance] administrative body received [the applicant’s] second request to act ... it follows that the complaint is premature. The applicant’s request that the Ministry provides education in Turkish ... is inadmissible, as under Section 6 of the Administrative Disputes Act a complaint may only be lodged concerning the administrative acts and the [applicant’s] request is not an administrative act ...” On 28 May 1998 the applicant requested the Constitutional Court to quash the Supreme Court’s decision of 8 October 1997. He, inter alia, complained that the court had assessed the evidence wrongly and that his daughter had been discriminated against as a result of the Supreme Court’s decision since she was denied access to a Turkish-speaking school. On 17 June 1998 the applicant was informed that the Constitutional Court had not been competent to deal with his complaint. On 9   December   1998 the Constitutional Court refused to examine the applicant’s complaint that the Supreme Court’s decision of 8 October 1997 interfered with his daughter’s right to education in Turkish. It, inter alia, held that: “...the Supreme Court did not decide on the enjoyment of the right to primary education in the language of the minorities, but on the procedural conditions ... to institute administrative proceedings, as such [the decision] cannot have any repercussions in favour or to the disadvantage of the applicant... ...the [impugned] decision is procedural and [does not examine] the merits and does not concern the right to primary education in the minorities’ languages, therefore, the court holds that there are procedural impediments to examine the applicant’s complaint... ...” On 8 July 1998 the Supreme Court refused to examine the applicant’s request for the re-opening of the proceedings on the ground that the applicant had not submitted fresh evidence as required by Section 52 of the Administrative Disputes Act. On 9 September 1998 the applicant invited the Commission to reply to his appeal of 20 March 1997. The applicant did not provide any details as to the follow-up of the proceedings. 4.     Enrolment of the applicant’s younger daughter in a Turkish-speaking school in a different district On 28 August 1998 the applicant’s request that his younger daughter be enrolled in the Turkish-speaking school in Kođađik was refused on the basis of residence. On 23 December 1998 the Supreme Court refused to examine the applicant’s complaint about the school’s refusal on a procedural ground.   On 4 March 1999 the applicant’s subsequent appeal concerning the school’s refusal of 28 August 1998 was dismissed by the second instance body which informed him that he should enrol his daughter in the school in his place of residence. On 21 November 2000 the Supreme Court dismissed the applicant’s administrative complaint on the ground that under the Primary Education Act pupils were assigned to schools in accordance with their place of residence and that he had been informed that his daughter had to attend the school in Centar Župa. The court further relied on the Constitutional Court’s decision of 5 July 2000 annulling the Government’s decisions to provide education in Turkish in Centar Župa. B.     Relevant domestic law 1.     Constitution Article 44 provides as follows   : “Every person has the right to education. Education is accessible to all persons under equal conditions. Primary education is compulsory and free of charge.” Article 48 provides as follows   : “The members of minorities have the right to express, nurture and promote their identity and national attributes. The Republic guarantees the protection of their ethnic, cultural, linguistic and religious identity. The members of minorities have the right to establish institutions for culture and art, as well as scientific and other associations to express, nurture and promote their identity. The members of minorities have the right to education in their language in the primary and secondary schools in accordance with the relevant law. In the schools where the education is provided in the minorities’ languages, the Macedonian language shall also be taught.” Article 110 § 3 sets out the Constitutional Court’s competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation. 2.     Rules of the Constitutional Court Section 51 provides that a person who claims to be a victim of a violation of one of the rights set out in Article 110 § 3 of the Constitution shall have the right to file an application with the Constitutional Court. 3.     Primary Education Act Section 8 provides, inter alia, that the members of minorities shall have the right to education in their own language. They shall also study the Macedonian language. Section 45 provides that primary schools shall admit all the pupils living in their district. Sections 46 and 47 provide that the parents are responsible for the enrolment of their children and for their regular attending of the classes. The primary school shall inform the Ministry of Education and Sport about the pupils of its area who have not enrolled, or have not attended the classes for more then thirty days without a justification. Section 48 provides, inter alia, that on the parents’ or guardians’ request the pupils may be transferred to another school.    4.     Administrative Procedure Act Section 230 provides that an appeal can be lodged against a decision of an administrative body with the second instance administrative body within fifteen days. 5.     Administrative Disputes Act Section 26 § 1 provides that a person may institute administrative proceedings before the Supreme Court provided that the second instance administrative body does not decide on the matter within sixty days from the day the appeal against the first instance administrative body is received, and does not react within seven days on the person’s repeated request. COMPLAINTS 1.     The applicant complains under Article 2 of Protocol No. 1 of the Convention that the authorities refused to provide education in Turkish in the district where his daughters were to attend primary school. 2.     The applicant further complains under Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 that his daughters were refused access to Turkish-speaking school on the ground of his place of residence. THE LAW The applicant complains that the authorities refused to provide education in Turkish where his daughters were to attend primary school. He further complains that his daughters were refused access to a Turkish-speaking school on the ground of his place of residence. Article 2 of Protocol No. 1 of the Convention provides as follows: “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.” Article 14 of the Convention provides as follows: “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.” 1.     Complaint under Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 that the applicant’s younger daughter was refused access to a Turkish-speaking school on the basis of her father’s residence As regards the applicant’s complaint under Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 that his younger daughter was refused access to the Turkish-speaking school on the basis of her father’s residence, the Court considers that it cannot, on the basis of the case file, determine its admissibility and that it is therefore necessary, in accordance with Rule   54 §   3   (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. 2.     Complaint under Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 that the applicant’s older daughter was refused access to a Turkish-speaking school on the basis of her father’s residence The Court recalls that Article 2 of Protocol No. 1 does not guarantee education in a particular language in accordance with the parents’ preferences (see the judgment in the “Belgian Linguistic Case” of 23   July   1968, Series A No. 6, p. 32, § 3). It further recalls that according to its established case-law, Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, mutatis mutandis , the Rasmussen v.   Denmark judgment of 28 November 1984, Series A no. 87, p. 12, § 29). However, the Court does not need to examine whether the applicant’s claim falls within the ambit of Article 2 of Protocol No. 1 since, in any event, the complaint is inadmissible. The Court notes that on 8 October 1997 the Supreme Court refused to examine the merits of the applicant’s complaint about the Kođađik school’s refusal to admit his older daughter, as his allegations that he had submitted a second request to act to the Commission were not supported by evidence. On 26 June 1998 the Commission informed the applicant that it had not received his appeal of 20 March 1997 against the “tacit refusal” of the Kođađik school to admit his older daughter. On 9 September 1998 the applicant invited the Commission to reply to his appeal of 20 March 1997. The applicant does not submit any details as to whether he pursued any legal action. Nothing prevents him from lodging a complaint with the Supreme Court once that requirements of Section   26 §   1 of the Administrative Disputes Act are fulfilled. Instead, the applicant requested the Supreme Court to re-open the proceedings concerning its decision of 8 October 1997. Furthermore, he complained to the Constitutional Court alleging, inter alia, that the Supreme Court had denied to his older daughter access to a Turkish-speaking school. The Court observes that the Constitutional Court refused to deal with the matter, holding that the impugned decision had been only procedural and it had not concerned the right to primary education in the minorities’ languages. Taking note of the Supreme Court’s decision of 8 October 1997 and the Constitutional Court’s decision of 9 December 1998 the Court considers that the above-mentioned constitutional complaint was not an adequate and effective remedy to be exhausted in the applicant’s case. The Court finds that the applicant has not made proper use of the opportunities to challenge the Kođađik school’s refusal to admit his older daughter, or to complain to the Constitutional Court that his older daughter was discriminated against. It follows that the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 3.     Complaint under Article 2 of Protocol No. 1 that the authorities refused to provide education in Turkish in the applicant’s district The Court points out that a right to education in a particular language or a right to obtain from the State the creation of a particular kind of educational establishment cannot be derived from Article 2 of Protocol No.   1. This provision does not require of States that they should, in the sphere of education or teaching, respect parents’ linguistic preferences, but only their religious and philosophical convictions. To interpret the terms “religious” and “philosophical” as covering linguistic preferences would amount to a distortion of their ordinary and usual meaning and to read into the Convention something which is not there. Moreover, the Court recalls that the “drafting history of that Article” confirms that the object of the second sentence of Article 2 was in no way to secure respect by the State of a right for parents to have education conducted in a language other than that of the country in question; indeed in 1951 the Committee which drafted Protocol No. 1 to the Convention set aside a proposal put forward in this sense, several of its members having believed that it concerned an aspect of the problem of ethnic minorities and that it thus fell outside the scope of the Convention (see the above-cited judgment in the “Belgian Linguistic Case”, p. 32, § 6). 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.   For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaint under Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 to the Convention that his younger daughter was refused access to a Turkish-speaking school on the basis of her father’s residence; Declares inadmissible the remainder of the application. Vincent Berger   Georg Ress   Registrar   President