CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 23 février 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s959B95E9 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s8031FF69 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid; font-size:1pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sA187A805 { width:199.62pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FIRST SECTION DECISION Application no. 62565/14 Jan Jakub HRAZDÍRA against the Czech Republic The European Court of Human Rights (First Section), sitting on 23   February 2016 as a Committee composed of:   Ledi Bianku, President,   Aleš Pejchal,   Armen Harutyunyan, judges, and André Wampach, Deputy Section Registrar, Having regard to the above application lodged on 7 September 2014, Having deliberated, decides as follows: THE FACTS The applicant, Jan Jakub Hrazdíra, is a Czech national, who was born in 2001 and lives in Milešovice. He is represented by his mother, Ms Lenka Krajčovič, who authorised Ms A. Campbell, litigation director of the Mental Disability Advocacy Center in Budapest, and Ms Z. Durajová, lawyer from the Czech League of Human Rights, to represent him before the Court. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In 2005, the applicant was diagnosed with an autistic disorder and medium intellectual disability; he therefore attended a special kindergarten and a special primary school, until 2012. Several psychological reassessments carried out in 2011 recommended that he be transferred to a “normal” school, preferably to a smaller class, where he could benefit from an individual education plan and a pedagogical assistant. Subsequently, his mother allegedly approached numerous primary schools which would all refuse to enrol the applicant. Directors of two schools referred the applicant’s mother to the Milešovice primary school, which is the applicant’s local school. After an unsuccessful informal exchange with the director of the Milešovice primary school, the applicant’s mother sent her a written request to integrate the applicant, which was refused on 23 March 2012, due to the lack of capacity and necessary pedagogical arrangements. Her appeal was dismissed as out of time. On 7 June 2012, the applicant’s mother filed through her legal representative a new request asking the director of the Milešovice primary school to enrol the applicant. On 19 June 2012, her request was rejected due to a lack of appropriate conditions, capacity and experience with integrating disabled children. It   was noted that since March 2012, the applicant has been attending the primary school of Šaratice, situated about 5 km from his place of residence, where he was provided with an individual education plan and a pedagogical assistant. On 6 September 2012, the applicant’s mother’s appeal against the decision of 19 June 2012 was dismissed by the competent regional authority, which considered that the impugned decision had been issued in accordance with the law and rejected the discrimination claim. In the meantime, on 17 May 2012, the applicant’s mother requested the Milešovice Municipality to provide inclusive education to the applicant, claiming that the municipality was under obligation to create conditions for mandatory school attendance of children permanently residing there. In the absence of any response, the applicant’s mother requested the competent regional authority to take measures against such inaction. On 16 July 2012, the regional authority informed her that it lacked competence to supervise the action of the municipality in that regard because creating conditions for school attendance of children residing on its territory was within the autonomous competence of the municipality. On 14 September 2012, relying on Articles 79 and 82 of Act   no.   150/2002 (Code of Administrative Court Procedure), the applicant and his mother lodged an administrative action, seeking protection against the inactivity and the illegal interference of the municipality, which did not react to their request of 17 May 2012 and was not taking any measures to provide inclusive education to the applicant. On 4 October 2012, the Brno Regional Court rejected the action as inadmissible, holding that the plaintiffs should seek protection of the applicant’s right to education primarily through an action based on Article   65 of Act no. 150/2002 and directed against the decision of the director of the Milešovice Primary School not to integrate the applicant (after the decision on their administrative appeal against this decision would have been served on them). Upon the plaintiffs’ cassation complaint, the Supreme Administrative Court endorsed the Regional Court’s opinion on the existence of a concrete and effective remedy in form of the action under Article 65 of Act   no.   150/2002. It held that only “if the conditions for mandatory school attendance are not set, which is a conclusion which could be reached by the administrative authority deciding on an appeal against a decision not to integrate a pupil, or by the court dealing with an administrative action, the municipality is under obligation to create such conditions, in cooperation with school institutions”. It observed that even if the applicant’s current action against the municipality had been successful, it would have led only to creating such conditions, not to integrating him to a concrete school. Moreover, the applicant was not obliged to challenge negative decisions of every single school approached but only the decision of such school which objectively complied with conditions for his inclusive education. The plaintiffs lodged a constitutional appeal, relying mainly on the applicant’s rights to education and to a judicial protection; the issues of discrimination based on a disability and of the right to respect for private life were also mentioned. They claimed that the municipality was obliged to ensure that the applicant be able to fulfil his school attendance in his local school. By the decision no. IV. ÚS 2093/13 of 5 March 2014 (served on 7   March   2014), the Constitutional Court dismissed the appeal as manifestly ill-founded, underlining that the administrative courts were not denying the plaintiffs their right to judicial protection. Rather, they comprehensively and convincingly explained why the plaintiffs had not proceeded in accordance with the law when they had challenged the conduct of the Milešovice Municipality instead of challenging the decision of the director of the Milešovice Primary School. COMPLAINTS 1.     Relying on Article 2 of Protocol No. 1, the applicant complained that he was not provided inclusive education, despite that such responsibility rests with the municipality. 2.     According to the applicant, the facts of the case establish a presumption that he was subject to a discrimination based on his disability, contrary to Article 14 combined with Article 2 of Protocol No.   1. 3.     The applicant alleged under Article 13 that he has no effective remedy in respect of the above violations, inter alia because he cannot reasonably be expected to challenge the negative decisions of all the schools which refused to integrate him, and because the structural violations at issue go beyond his personal interests. THE LAW A.     Alleged violation of Article 2 of Protocol No. 1 The applicant complained that he has not been provided with inclusive education within his municipality. He relied on Article 2 of Protocol No. 1, which reads 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.” The right to education, as set out in the first sentence of Article 2 of Protocol No. 1, guarantees everyone within the jurisdiction of the Contracting States a right of access to educational institutions existing at a given time, and the possibility of drawing, by official recognition of the studies which he has completed, profit from the education received ( Oršuš and Others v. Croatia [GC], no. 15766/03, § 146, ECHR 2010). Such right by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals ( Leyla Şahin v. Turkey [GC], no. 44774/98, §   154, ECHR 2005 ‑ XI). In the present case, the Court observes in the first place that the applicant, though duly legally represented, did not offer the State an opportunity to put matters right through its own legal system. All levels of courts have comprehensively and convincingly explained why the applicant should have primarily challenged the negative decision of the director of the Milešovice Primary School. Such possibility was still open to him at the time of the adoption of the Regional Court’s decision. However, instead of disputing the decision taken by the director of the Milešovice Primary School on 9 June 2012 and the subsequent dismissal of his appeal through an administrative action based on Article 65 of Act no. 150/2002, the applicant challenged the alleged inactivity of the Milešovice Municipality and the absence of measures to provide him with inclusive education. As pointed out by the Supreme Court, even if such action against the municipality had been successful, it would have led only to creating conditions for mandatory school attendance, not to integrating the applicant to a concrete school. The Court finds no reason to consider such interpretation of the domestic law by the Supreme Court to be unreasonable. The Supreme Court also noted that the applicant was not expected to file an administrative action pursuant to Article 65 of Act no. 150/2002 against the decisions of all the schools his mother had approached but only against the decision of the school which objectively complied with conditions for his inclusive education, which cannot be considered as an excessive burden. However, the applicant did not properly explained why he failed to use such remedy. Furthermore, the Court observes that the domestic proceedings which the applicant challenged in his application to the Court aimed solely at him being integrated into the Milešovice Primary School. However, Article 2 of Protocol No. 1 cannot be interpreted as guaranteeing the right to be enrolled in one particular, here local, school. The Court notes that it appears from the file that the applicant has been attending since March 2012 a normal primary school, situated about 5 km from his place of residence, where he was provided with an individual education plan and a pedagogical assistant. Thus, given that the applicant does not claim that such education is inadequate or inappropriate, his educational needs and wish for inclusive education can be deemed to be satisfied. In these circumstances, the applicant’s complaint under that provision is manifestly ill-founded and must be rejected in accordance with Article   35   §§ 3 (a) and 4 of the Convention. B.     Other alleged violations As regards the complaint under Article 14, taken in conjunction with Article 2 of Protocol No. 1, the Court notes that the Constitutional Court did not comment on this issue. In any event, the reasons which led the Court to conclude that the complaint under Article 2 of Protocol No. 1 is inadmissible also apply to the complaint under Article 14 taken in conjunction with the aforementioned provision. Concerning the applicant’s complaint under Article 13 of the Convention, it follows from the above considerations that the applicant had at his disposal an effective domestic remedy, which he failed to use. It follows that the remainder of the application 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.   Done in English and notified in writing on 17 March 2016. André Wampach   Ledi Bianku Deputy Registrar   President