CEDH · CASELAW;CLIN;ENG — 21 juin 2011

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 142 June 2011 Ponomaryovi v. Bulgaria - 5335/05 Judgment 21.6.2011 [Section IV] Article 14 Discrimination Requirement on aliens without permanent residence to pay secondary-school fees: violation   Facts – Under the National Education Act 1991 only Bulgarian nationals and certain categories of aliens were entitled to primary and secondary education free of charge. The applicants were two Russian schoolchildren living with their mother in Bulgaria. At the material time, only the mother had a permanent residence permit although the applicants were entitled to live there as members of her family. In their application to the European Court the applicants complained of discrimination in that they had been required to pay fees (of EUR 800 and EUR 2,600 respectively) to pursue their secondary education in Bulgaria, unlike Bulgarian nationals and aliens with permanent residence permits. Law – Article 14 of the Convention in conjunction with Article   2 of Protocol No.   1 (a)     Applicability – Access to educational institutions existing at a given time was an inherent part of the right set out in the first sentence of Article   2 of Protocol No.   1. The applicants had enrolled in and attended secondary schools set up and run by the Bulgarian State, but had later been required, by reason of their nationality and immigration status, to pay school fees in order to pursue their secondary education. The complaint therefore fell within the scope of Article   2 of Protocol No.   1 and Article 14 of the Convention was applicable. (b)     Merits – Given that the applicants had been required to pay school fees exclusively because of their nationality and immigration status, they had clearly been treated less favourably than others in a relevantly similar situation on account of a personal characteristic. The Court therefore had to determine whether there had been objective and reasonable justification for that difference in treatment. A State could have legitimate reasons for curtailing the use of resource-hungry public services (such as welfare programmes, public benefits and health care) by short-term and illegal immigrants, who, as a rule, did not contribute to their funding. Although similar arguments applied to a certain extent in the field of education, they could not be transposed there without qualification. While recognising that education was an activity that was complex to organise and expensive to run and that the State had to strike a balance between the educational needs of those under its jurisdiction and its limited capacity to accommodate them, the Court could not overlook the fact that, unlike some other public services, education was a right that enjoyed direct Convention protection. It was also a very particular type of public service, which not only directly benefited those using it but also served broader societal functions and was indispensable to the furtherance of human rights. The State’s margin of appreciation in this domain increased with the level of education, in inverse proportion to the importance of that education for those concerned and for society at large. Thus, at the university level, which thus far had remained optional for many people, higher fees for aliens – and indeed fees in general – seemed to be commonplace and could, in the present circumstances, be considered fully justified. The opposite applied to primary schooling, which provided basic literacy and numeracy – as well as integration into and first experiences of society – and was compulsory in most countries. Secondary education, which was at issue in the applicants’ case, fell between those two extremes. However, with more and more countries moving towards what had been described as a “knowledge based” society, secondary education played an ever increasing role in successful personal development and in the social and professional integration of the individuals concerned. Indeed, in a modern society, having no more than basic knowledge and skills constituted a barrier to successful personal and professional development and prevented those concerned from adjusting to their environment, with far reaching consequences for their social and economic well being. Those considerations militated in favour of the Court’s applying stricter scrutiny to the assessment of the proportionality of the measure affecting the applicants. The applicants had not been in the position of individuals arriving in the country unlawfully and then laying claim to the use of its public services, including free schooling. Even without permanent residence permits, the authorities had not had any substantive objection to their remaining in Bulgaria or any serious intention of deporting them. Thus, any considerations relating to the need to stem or reverse the flow of illegal immigration clearly did not apply to the applicants’ case. However, the Bulgarian authorities had not taken any of these factors into account. Indeed, the legislation did not provide any possibility of requesting an exemption from the payment of school fees. In the specific circumstances of the case, therefore, the requirement for the applicants to pay fees for their secondary education on account of their nationality and immigration status was not justified. Conclusion : violation (unanimously). Article 41: EUR 2,000 each in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes