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FOURTH
SECTION
CASE OF
ANATOLIY PONOMARYOV
AND
VITALIY PONOMARYOV v. BULGARIA
(Application
no. 5335/05)
JUDGMENT
STRASBOURG
21
June 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Anatoliy Ponomaryov and Vitaliy Ponomaryov
v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Sverre
Erik Jebens,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5335/05) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Russian nationals, Mr Anatoliy
Vladimirovich Ponomaryov and Mr Vitaliy Vladimirovich Ponomaryov
(“the applicants”), on 8 February 2005.
- The
applicants were represented by Mr V. Stoyanov, a lawyer practising in
Pazardzhik, Bulgaria. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Dimova, of
the Ministry of Justice.
- The
Government of the Russian Federation, having been informed of their
right to intervene in the case (Article 36 § 1 of the Convention
and Rule 44 § 1 of the Rules of Court), stated in a letter of 25
December 2007 that they did not wish to avail themselves of that
opportunity.
- The
applicants alleged, in particular, that they had been discriminated
against as, unlike Bulgarian nationals and certain categories of
aliens, they had been required to pay fees in order to pursue their
secondary education.
- By a decision of 18 September 2007, the Court declared
the application partly inadmissible. By a decision of 10 February
2009, it struck part of the application out of its list of cases and
declared a further part inadmissible and the remainder admissible.
- The
applicants and the Government each filed further written observations
(Rule 59 § 1 of the Rules of Court).
- The
application was later transferred to the Fourth Section of the Court,
following the re composition of the Court’s sections on 1
February 2011.
- On
3 May 2011 the President of the Fourth Section decided not to accede
to the applicants’ request that their identity not be disclosed
to the public (Rule 47 § 3 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
- The first applicant, Mr Anatoliy Ponomaryov, was born
on 15 June 1986 in Kustanay, in the Kazakh Soviet Socialist Republic
(now the Republic of Kazakhstan). His brother, the second applicant,
Mr Vitaliy Ponomaryov, was also born there on 6 June 1988. In 1990
the two moved to Moscow, the Russian Federation, with their mother,
Mrs A.P., a Russian national. In 1992 their mother divorced their
father, Mr V.P., also a Russian national. The whereabouts of the
latter remain unclear; it appears that he might have settled in
another country, probably Germany. It also seems that the applicants
have not kept any contact with their father since the divorce.
- On 6 August 1993 the applicants’ mother married
a Bulgarian national. In 1994 the family settled in Pazardzhik,
Bulgaria. The applicants’ mother was then granted a permanent
residence permit on the basis of her marriage to a Bulgarian
national, and the applicants were entitled to reside in Bulgaria on
the basis of their mother’s permit.
- In 1994 the applicants enrolled in a Bulgarian primary
school, and later in secondary schools. Both of them apparently speak
fluent Bulgarian.
- Their mother has been out of work since 1998. Her
husband owned a small internet café business, which was
apparently shut down by the authorities in 2005.
- On 15 June 2004 Mr Anatoliy Ponomaryov turned
eighteen, and accordingly had to obtain an independent permit in
order to continue residing in Bulgaria lawfully. In September 2004 he
contacted the immigration authorities and was informed that, to
obtain a permanent residence permit, he first had to leave Bulgaria,
obtain a special visa from a Bulgarian embassy abroad, return to the
country and apply for a temporary residence permit; only then could
he apply for a permanent residence permit.
- On 28 September 2004 the consular department of the
Ministry of Foreign Affairs informed Mr Anatoliy Ponomaryov that it
would not insist on his leaving the country to obtain a special visa
and that he could get one in Bulgaria. The applicant then applied for
a permanent residence permit. However, as he was unable to raise the
money needed to pay the requisite fees (amounting in total to
slightly over 1,300 Bulgarian levs (BGN)), the immigration
authorities returned his application on 22 February 2005 without
considering it.
- In October 2005 both applicants, asserting that they
had no property or income, asked the Commission for the Remission of
Uncollectible State Debts, established by the President of the
Republic, to waive the fees in respect of both of them. On 31 May
2006 the Commission rejected their requests, stating that their debts
did not appear to be uncollectible.
- In the meantime, on 17 February and 8 March 2006, the
immigration authorities informed the applicants that they had been
granted permanent residence permits, and invited them to collect
them. On 11 May 2006 the applicants paid the requisite fees and
obtained documents certifying that they had permanent residence
permits. The total amount paid by Mr Anatoliy Ponomaryov was BGN
1,375.26, and the total amount paid by Mr Vitaliy Ponomaryov was BGN
1,415.26. They managed to raise the money by taking out a bank loan.
B. Mr Anatoliy Ponomaryov’s school fees
- On 9 February 2005, when Mr Anatoliy Ponomaryov was in
the final year of his secondary education, the head of the Regional
Education Inspectorate of the Ministry of Education wrote to the head
teacher of his school, inquiring whether the applicant had paid the
school fees which he owed as an alien without a permanent residence
permit and, if not, whether any measures had been taken to collect
them. Two and a half months later, on 26 April 2005, the Education
Inspectorate in Pazardzhik held a meeting with the head teacher. At
that meeting, attended also by representatives of the immigration
authorities, a discussion took place as to whether steps should be
taken to enforce paragraph 4(3) of the additional provisions of the
1991 National Education Act (see paragraph 32 below) in respect of
the applicant.
- On 28 April 2005 the head teacher ordered the
applicant to pay EUR 800 in fees, failing which he would be
barred from attending classes and would not be issued with a
certificate for having completed the school year. She relied on a
decision of the Minister of Education of 20 July 2004 laying down the
fees payable by aliens schooled in Bulgarian educational
establishments under the above-mentioned paragraph 4(3).
- The applicant sought judicial review of the head
teacher’s order. On 5 July 2005 the Pazardzhik Regional Court
partly quashed and partly upheld the order. It found that there was
no indication that the applicant had a permanent residence permit. He
could therefore pursue his studies only if he paid the requisite
fees. However, the fact that he had not paid them, given that the
amount could still be recovered from him, did not mean that he should
not be issued with a certificate for having completed the previous
school year. That part of the order was therefore unlawful.
- Both the applicant and the head teacher appealed. On
13 June 2006 the Supreme Administrative Court (реш.
№ 6381 от 13 юни 2006 г. по
адм. д. № 10496/2005 г., ВАС,
V о.) upheld the lower court’s
judgment. It fully agreed with its reasoning, and added that the fact
that in the meantime the first applicant had been granted a permanent
residence permit (see paragraph 16 above) meant solely that he could
attend a Bulgarian school free of charge in the future. However, as
at the relevant time he had not had permanent resident status, he had
been obliged to pay the requisite fee. Concerning the issuing of a
certificate for completion of the corresponding school year, the
lower court’s ruling was correct, as the applicant’s
failure to pay the fee was a precondition for his attending classes,
but could not serve as grounds for refusing to recognise a diploma if
the individual concerned had already been schooled.
- Apparently the applicant’s school did not in
practice prevent him from attending classes, but the delivery of his
secondary school diploma was delayed by about two years, which in
turn delayed his enrolment in university.
C. The proceedings for judicial review of the
Minister’s decision
- Separately, Mr Anatoliy Ponomaryov sought review of
the Minister’s fee setting decision of 20 July 2004 (see
paragraph 18 above). He argued, inter alia, that it was
discriminatory to require aliens to pay fees to attend Bulgarian
schools.
- On 10 January 2006 (реш.
№ 349 от 10 януари
2006 г. по адм. д. №
5034/2005 г., ВАС, V
о.) a three member panel of the Supreme
Administrative Court dismissed the application. It found, inter
alia, that privileges granted on the basis of nationality were
commonplace in many countries. Moreover, Article 14 of the Convention
did not expressly prohibit discrimination on such grounds. If
envisaged by a statute or an international treaty, the differential
treatment of individuals on the basis of their nationality did not
amount to discrimination. Moreover, aliens having permanent residence
permits did not have to pay school fees. However, the applicant had
not shown that he had such a permit.
- On an appeal by the applicant, a five member
panel of the Supreme Administrative Court upheld the lower court’s
judgment on 13 June 2006 (реш. №
6391 от 13 юни 2006 г. по
адм. д. № 2249/2006
г., ВАС, петчленен
с в), fully
concurring with its reasoning.
D. Mr Vitaliy Ponomaryov’s school fees
- On 31 October 2005, when Mr Vitaliy Ponomaryov was in
the penultimate year of his secondary education, the head teacher of
his school ordered him to pay EUR 1,300 in fees, failing which he
would be barred from attending classes and would not be issued with a
certificate for having completed the school year.
- The applicant sought judicial review of this order,
arguing, inter alia, that it infringed his rights under the
Convention. On 4 April 2006 the Pazardzhik Regional Court dismissed
his application. It found no indication that the applicant had a
permanent residence permit or that a procedure for obtaining such a
permit was under way. He could therefore pursue his studies only if
he paid the requisite fee. This did not infringe his right to
education, as aliens could attend Bulgarian schools provided they
paid the requisite fees.
- The applicant appealed. On 13 December 2006 (реш.
№ 12503 от 13 декември
2006 г. по адм. д. №
6371/2006 г., ВАС, V
о.) the Supreme Administrative Court upheld the lower
court’s judgment. It noted that, since the applicant had in the
meantime been granted a permanent residence permit (see paragraph 16
above), he could attend a Bulgarian school free of charge in the
future. However, as at the relevant time he had not had the status of
a permanent resident, he had been obliged to pay the requisite fee.
- On 20 March 2007 the head teacher of the applicant’s
school invited him to pay EUR 1,300 in respect of his schooling
during the 2004/05 school year and the same amount in respect of his
schooling during the 2005/06 school year.
- It seems that the applicant was in practice not barred
from attending classes throughout the period 2004 06. He
submitted that he had been prevented from doing so for certain
periods of time, but the court examining a civil claim by his school
against him (see paragraph 30 below) found, after reviewing the
available evidence in this respect, that he had attended school
without interruption during that period.
- On 6 June 2007 the applicant’s school brought a
claim against him, seeking payment of the fees due. In a judgment of
18 February 2008, the Pazardzhik District Court allowed the claim and
ordered the applicant to pay his school EUR 2,600 plus interest. It
found that the applicant owed this amount because at the relevant
time he had not had a permanent residence permit entitling him to be
schooled free of charge. Following an appeal by the applicant, on 7
May 2008 the Pazardzhik Regional Court quashed the lower court’s
judgment and dismissed the claim. The school appealed on points of
law. On 25 November 2008 the Supreme Court of Cassation accepted the
appeal for examination, and in a judgment of 29 April 2010 (реш.
№ 1012 от 29 април
2010 г. по гр. д. №
3446/2008 г., ВКС, І
г. о.), quashed the Pazardzhik Regional Court’s
judgment and allowed the claim, ordering the applicant to pay the
school the equivalent of EUR 2,600, plus interest (the total sum came
to BGN 6,394.45), and BGN 350 for costs. It observed, inter alia,
that the requirement for certain categories of aliens to pay school
fees stemmed directly from the applicable law.
II. RELEVANT DOMESTIC LAW
A. The 1991 Constitution
- The relevant provisions of the 1991 Constitution read:
Article 26 § 2
“Aliens residing in the Republic of Bulgaria shall
have all rights and obligations flowing from this Constitution except
those rights and obligations in respect of which the Constitution and
the laws require Bulgarian nationality.”
Article 53
“1. Everyone shall have the right to
education.
2. School education up to the age of sixteen
years shall be compulsory.
3. Primary and secondary education in State
and municipal schools shall be free of charge. Education in higher
educational establishments run by the State shall be free of charge
under the conditions set out in the law. ...”
B. The 1991 National Education Act
- Under section 6 of the 1991 National Education Act
(Закон за
народната
просвета),
education in State and municipal schools is free of charge. Paragraph
4(1) of the additional provisions of the Act allows all aliens to
enrol in Bulgarian schools. Their education is also free of charge if
they: (a) have a permanent residence permit (paragraph 4(2), as
originally enacted in 1991); (b) have been enrolled following a
decision of the Council of Ministers or under intergovernmental
agreements so providing (the same provision, as amended in 1998); or
(c) are of compulsory school age (under sixteen), and their parents
work in Bulgaria and are nationals either of a member State of the
European Union or the European Economic Area, or of Switzerland (the
same provision, as amended in May 2006; the amendment was intended to
implement in Bulgarian law the provisions of Council Directive
77/486/EEC on the education of the children of migrant workers, and
entered into force on the day of Bulgaria’s accession to the
European Union – 1 January 2007). Aliens who do not fall into
any of these categories must pay fees in amounts fixed by the
Minister of Education. The proceeds from these fees must be used
exclusively for the needs of the educational establishments where
those concerned are being schooled (paragraph 4(3), as amended in
1998).
III. RELEVANT INTERNATIONAL LAW
- Articles 2 § 1 and 28 § 1 of the 1989 United
Nations Convention on the Rights of the Child (ratified by Bulgaria
on 3 June 1991) read, in so far as relevant:
Article 2 § 1
“States Parties shall respect and ensure the
rights set forth in the present Convention to each child within their
jurisdiction without discrimination of any kind, irrespective of the
child’s or his or her parent’s or legal guardian’s
race, colour, sex, language, religion, political or other opinion,
national, ethnic or social origin, property, disability, birth or
other status.”
Article 28
“States Parties recognize the right of the child
to education, and with a view to achieving this right progressively
and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and
available free to all;
(b) Encourage the development of different
forms of secondary education, including general and vocational
education, make them available and accessible to every child, and
take appropriate measures such as the introduction of free education
and offering financial assistance in case of need;
(c) Make higher education accessible to all
on the basis of capacity by every appropriate means;
...”
- Article 13 of the International Covenant on Economic,
Social and Cultural Rights (ratified by Bulgaria on 21 September
1970) reads as follows:
“1. The States Parties to the present
Covenant recognize the right of everyone to education. They agree
that education shall be directed to the full development of the human
personality and the sense of its dignity, and shall strengthen the
respect for human rights and fundamental freedoms. They further agree
that education shall enable all persons to participate effectively in
a free society, promote understanding, tolerance and friendship among
all nations and all racial, ethnic or religious groups, and further
the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant
recognize that, with a view to achieving the full realization of this
right:
(a) Primary education shall be compulsory and
available free to all;
(b) Secondary education in its different
forms, including technical and vocational secondary education, shall
be made generally available and accessible to all by every
appropriate means, and in particular by the progressive introduction
of free education;
(c) Higher education shall be made equally
accessible to all, on the basis of capacity, by every appropriate
means, and in particular by the progressive introduction of free
education;
(d) Fundamental education shall be encouraged
or intensified as far as possible for those persons who have not
received or completed the whole period of their primary education;
(e) The development of a system of schools at
all levels shall be actively pursued, an adequate fellowship system
shall be established, and the material conditions of teaching staff
shall be continuously improved.”
- Article 17 § 2 of the Revised European Social
Charter (which Bulgaria ratified on 7 June 2000, accepting sixty two
of its ninety eight paragraphs, including Article 17 § 2)
reads, in so far as relevant:
“With a view to ensuring the effective exercise of
the right of children and young persons to grow up in an environment
which encourages the full development of their personality and of
their physical and mental capacities, the Parties undertake, either
directly or in co operation with public and private
organisations, to take all appropriate and necessary measures
designed:
...
2. to provide to children and young persons a
free primary and secondary education as well as to encourage regular
attendance at schools.”
IV. RELEVANT COMPARATIVE LAW
- On the basis of the material available to the Court in
respect of twenty six Member States of the Council of Europe, it
appears that in seventeen States (Belgium, Cyprus, the Czech
Republic, Estonia, Germany, Italy, France, Latvia, Luxembourg,
Portugal, Russia, Slovenia, Spain, Switzerland, “the former
Yugoslav Republic of Macedonia”, the Netherlands and the United
Kingdom) primary and secondary education is free of charge and
accessible to all persons living or residing in the county regardless
of their immigration status or the immigration status of their
parents. Certain categories of aliens are required to pay fees for
their primary and secondary schooling in Malta, and only for their
upper secondary schooling in Denmark, Poland, and Romania. In five
States (Croatia, Monaco, Turkey, Slovakia and Ukraine), certain
non nationals might experience difficulties in enrolling in
schools because of their irregular status.
- The length of compulsory education varies between
Member States, from eight years at the bottom of the spectrum to
thirteen years at the top. In eleven States compulsory schooling
lasts eight or nine years, in ten States it lasts ten or eleven
years, and in five States it lasts twelve or thirteen years. However,
it is possible to say that in the great majority of the twenty six
States surveyed compulsory education encompasses primary and lower
secondary education, where the pupil generally finishes compulsory
education aged approximately sixteen years old. This is generally the
case for the first two groups, which together consist of twenty one
States. The number of years differs in each State depending on what
age compulsory education begins rather than ends. Upper secondary
education is compulsory only in a minority of the surveyed States
(Belgium, Luxembourg, “the former Yugoslav Republic of
Macedonia”, Portugal and Ukraine).
- The
Spanish Constitutional Court has dealt with the issue of the right to
post compulsory education for non resident aliens. A
Spanish statute governing the rights and freedoms of aliens and their
social integration excluded non resident aliens from the right
to post compulsory education. The court, in its judgment no.
236/2007 of 7 November 2007, declared that exclusion
unconstitutional, since it prevented undocumented or non resident
minors from having access to post compulsory education. For that
court, the legal or illegal residence of the minors was not a
criterion for granting the right to post compulsory education,
which is part of the right to education protected by Article 27 of
the Spanish Constitution. The court observed that the right to
education is not limited to basic education and that it also applies
to higher, post compulsory education. It referred to Article 2
of Protocol No. 1 to the Convention and to the fact that, in line
with Article 1 of the Convention, it applies ratione personae
to any “person”, including non resident or illegal
aliens.
- In 1982, in the case of Plyler v. Doe (457 U.S.
202), in which immigrant children to the State of Texas complained
that they had been deprived of the right to free education on account
of their undocumented status, the Supreme Court of the United States
held, by five votes to four, that the requirement for illegal aliens
– as opposed to nationals and lawfully resident aliens –
to pay school fees deprived them of the equal protection of the laws,
contrary to the Fourteenth Amendment to the Constitution of the
United States.
V. RELEVANT COUNCIL OF EUROPE MATERIAL
- In Resolution 1509 (2006), adopted on 27 June 2006 and
entitled “Human rights of irregular migrants”, the
Parliamentary Assembly of the Council of Europe expressed the view
that “all children have a right to education, extending to
primary school and secondary school levels, in those countries where
such schooling is compulsory. Education should reflect their culture
and language and they should be entitled to recognition, including
through certification, of the standards achieved” (point 13.6).
VI. RELEVANT STATISTICAL DATA
- Data published by the United Nations Department of
Economic and Social Affairs, Population Division (Trends in
International Migrant Stock: The 2008 Revision, available at
http://esa.un.org/migration/),
shows that in 2010 there were 107,245 immigrants in Bulgaria,
accounting for 1.4% of the population. According to the same source,
the annual rate of change of the migrant stock in Bulgaria between
2000 and 2010 was 0.6%.
- Data published by the International Organisation for
Migration (Migration in Bulgaria, a Country Profile 2008,
available at http://
publications.iom.int/bookstore/) shows that in 2006 in
Bulgaria there were 55,684 aliens with permanent residence permits.
According to the same source, the number of aliens apprehended as
illegally present in the country was as follows: 400 in 2002, 454 in
2003, 877 in 2004 and 1,190 in 2005.
- According to data published by the National
Statistical Institute of Bulgaria (available at http://www.nsi.bg/),
the number of students in upper secondary education during the period
2003 10 was as follows: 166,995 during the 2003/04 school year,
170,482 during the 2004/05 school year, 170,462 during the 2005/06
school year, 167,988 during the 2006/07 school year, 163,050 during
the 2007/08 school year, 156,978 during the 2008/09 school year, and
148,627 during the 2009/10 school year. The vast majority of them
(all but about 3,500 a year) were enrolled in public schools. No data
appears to be available as to how many of those students were not
Bulgarian nationals or as to their immigration status. By contrast,
there is data on the nationality of students in higher education
establishments (universities, equivalent higher schools and
colleges). The number of Bulgarian and foreign students in such
establishments during the period 2003 10 was as follows: 215,682
Bulgarians and 7,952 foreigners during the 2003/04 school year,
224,530 Bulgarians and 8,300 foreigners during the 2004/05 school
year, 229,649 Bulgarians and 8,652 foreigners during the 2005/06
school year, 244,816 Bulgarians and 9,060 foreigners during the
2006/07 school year, 251,000 Bulgarians and 9,110 foreigners during
the 2007/08 school year, 260,826 Bulgarians and 9,472 foreigners
during the 2008/09 school year, and 273,202 Bulgarians and 10,034
foreigners during the 2009/10 school year.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 TAKEN
ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
- The
applicants complained that they had been discriminated against
because, unlike Bulgarian nationals and aliens having permanent
residence permits, they had been required to pay fees to pursue their
secondary education.
- Since
the alleged discriminatory treatment of the applicants lies at the
heart of their complaint, the Court considers it appropriate to
examine it first under Article 14 of the Convention taken in
conjunction with Article 2 of Protocol No. 1 (see, mutatis
mutandis, Darby v. Sweden, 23 October 1990, § 28,
Series A no. 187; Pla and Puncernau v. Andorra, no. 69498/01,
§ 42, ECHR 2004 VIII; and Oršuš and Others
v. Croatia [GC], no. 15766/03, §§ 143 45,
ECHR 2010 ...). Those provisions read, in so far as relevant:
Article 14 of the Convention (prohibition of
discrimination)
“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.”
Article 2 of Protocol No. 1 (right to education)
“No person shall be denied the right to education.
...”
A. The parties’ submissions
- The applicants submitted that the requirement for them
to pay fees for their secondary education had been unjustified. In
their view, the manner in which domestic law regulated this matter
bred lack of clarity, led to errors and abuses and had imposed a
disproportionate burden on them. It was unclear who was liable to pay
the fees: the students, who had no income or property, or their
parents. The fees did not pursue any legitimate aim and failed to
strike a proper balance between the interests of the individual and
the public interest. In Bulgaria, secondary education was a
precondition for any sort of employment, and the lack of such
education meant that those concerned would be unable to integrate
properly or even ensure their livelihood. Under Article 28 of the
United Nations Convention on the Rights of the Child, the State had
the duty to assist children in their drive to become adequate members
of society. By erecting insuperable obstacles to the completion of
their secondary education, the State was preventing them from
developing in that way. The requirement for the applicants to pay
fees had been discriminatory because they had been in an identical
situation to the rest of their schoolmates. Under the 1991
Constitution, all individuals residing in Bulgaria had the same
rights and obligations regardless of their nationality and status.
Lastly, it had to be borne in mind that the applicants had been
children at the material time and thus entitled to special protection
under the Convention on the Rights of the Child, which was part of
domestic law.
- The Government submitted that the applicants had not
been discriminated against in the exercise of their right to
education. They referred to the legislative provisions governing the
obligation for certain aliens to pay fees for their education and
pointed out that at the relevant time the applicants did not fall
into any of the exempted categories. The Government further stated
that they fully concurred with the reasons given by the Supreme
Administrative Court, and asserted that the requirement to pay
reasonable amounts for schooling did not amount to discrimination.
B. The Court’s assessment
1. Do the facts of the case fall within the ambit of
one or more of the other substantive provisions of the Convention?
- Article
14 complements the other substantive provisions of the Convention and
its 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 presuppose a breach of those
provisions, 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,
among many other authorities, Rasmussen v. Denmark,
28 November 1984, § 29, Series A no. 87). The prohibition
of discrimination in Article 14 thus extends beyond the enjoyment of
the rights and freedoms which the Convention and Protocols require
each State to guarantee. It applies also to those additional rights,
falling within the general scope of any Article of the Convention or
its Protocols, which the State has voluntarily decided to provide
(see Case “relating to certain aspects of the laws on
the use of languages in education in Belgium” v. Belgium
(merits), 23 July 1968, pp. 33 34, § 9, Series A no. 6;
Stec and Others v. the United Kingdom (dec.) [GC], nos.
65731/01 and 65900/01, §§ 39 and 40, ECHR 2005 X;
E.B. v. France [GC], no. 43546/02, § 48, ECHR 2008 ...;
Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR
2009 ...; and Sejdić and Finci v. Bosnia and Herzegovina
[GC], nos. 27996/06 and 34836/06, § 39, 22 December
2009).
- It
must therefore be determined whether the applicants’ situation
fell within the scope of Article 2 of Protocol No. 1. On this point,
it should firstly be noted that there is little doubt that secondary
education is covered by that provision (see Leyla Şahin v.
Turkey [GC], no. 44774/98, §§ 136, ECHR 2005 XI).
Secondly, although that provision cannot be interpreted as imposing a
duty on the Contracting States to set up or subsidise particular
educational establishments, any State doing so will be under an
obligation to afford effective access to them (see Case “relating
to certain aspects of the laws on the use of languages in education
in Belgium” (merits), pp. 30 31, §§ 3
and 4, and Leyla Şahin, § 137, both cited above).
Put differently, access to educational institutions existing at a
given time is an inherent part of the right set out in the first
sentence of Article 2 of Protocol No. 1 (see Kjeldsen, Busk Madsen
and Pedersen v. Denmark, 7 December 1976, § 52, Series A no.
23; Mürsel Eren v. Turkey, no. 60856/00, § 41, ECHR
2006 II; İrfan Temel and Others v. Turkey, no.
36458/02, § 39, ECHR 2009 ...; and Oršuš
and Others, cited above, § 146). In the instant case, the
applicants had enrolled in and attended secondary schools set up and
run by the Bulgarian State (see paragraph 11 above). They were later
required, by reason of their nationality and immigration status, to
pay school fees in order to pursue their secondary education (see
paragraphs 17 20, 25 28 and 30 above). It follows that
their complaint falls within the scope of Article 2 of Protocol No.
1. This is sufficient to render Article 14 of the Convention
applicable.
2. Was there a difference of treatment between the
applicants and others placed in an analogous situation?
- The
applicants – secondary school students – were, unlike
others in their position, required to pay school fees. This was due
exclusively to their nationality and immigration status, because
under the 1991 National Education Act only Bulgarian nationals and
certain categories of aliens are entitled to primary and secondary
education free of charge (see paragraph 32 above). The applicants
were thus clearly treated less favourably than others in a relevantly
similar situation, on account of a personal characteristic.
3. Did the difference of treatment have an objective
and reasonable justification?
- Discrimination
means treating differently, without an objective and reasonable
justification, persons in relevantly similar situations; put
differently, there is discrimination if the distinction in issue does
not pursue a legitimate aim or the means employed to achieve it do
not bear a reasonable relationship of proportionality to it (see,
among many other authorities, D.H. and Others v. the Czech
Republic [GC], no. 57325/00, §§ 175 and 196, ECHR
2007-...).
- The
States enjoy a certain margin of appreciation in assessing whether
and to what extent differences in otherwise similar situations
justify a different treatment. The scope of this margin will vary
according to the circumstances, the subject matter and its background
(see, among other authorities, Rasmussen, cited above, §
40). Thus, the States are usually allowed a wide margin of
appreciation when it comes to general measures of economic or social
strategy (see Stec and Others v. the United Kingdom [GC], no.
65731/01, § 52, ECHR 2006 VI; Runkee and White v. the
United Kingdom, nos. 42949/98 and 53134/99, § 36, 10 May
2007; Burden v. the United Kingdom [GC], no. 13378/05, §
60 in fine, ECHR 2008 ...; Andrejeva, cited above,
§ 83; Carson and Others v. the United Kingdom [GC], no.
42184/05, § 61, ECHR 2010 ...; Clift v. the United
Kingdom, no. 7205/07, § 73, 13 July 2010; and J.M.
v. the United Kingdom, no. 37060/06, § 54, 28 September
2010). On the other hand, very weighty reasons would have to be put
forward before the Court could regard a difference of treatment based
exclusively on the ground of nationality as compatible with the
Convention (see Gaygusuz v. Austria, 16 September 1996, §
42, Reports of Judgments and Decisions 1996 IV; Koua
Poirrez v. France, no. 40892/98, § 46, ECHR 2003 X;
Luczak v. Poland, no. 77782/01, § 48, ECHR
2007 XIII; Andrejeva, cited above, § 87; Zeïbek
v. Greece, no. 46368/06, § 46 in fine, 9 July 2009;
Fawsie v. Greece, no. 40080/07, § 35, 28 October 2010;
and Saidoun v. Greece, no. 40083/07, § 37, 28 October
2010).
- The
Court would emphasise at the outset that its task in the present case
is not to decide whether and to what extent it is permissible for the
States to charge fees for secondary – or, indeed, any –
education. It has in the past recognised that the right to education
by its very nature calls for regulation by the State, and that this
regulation may vary in time and place according to the needs and
resources of the community (see Case “relating to certain
aspects of the laws on the use of languages in education in Belgium”
(merits), cited above, p. 32, § 5; Campbell and Cosans v. the
United Kingdom, 25 February 1982, § 41, Series A no. 48;
Çiftçi v. Turkey (dec.), no. 71860/01, ECHR
2004 VI; Mürsel Eren v. Turkey, no. 60856/00, §
44, ECHR 2006 II; and Konrad and Others v. Germany
(dec.), no. 35504/03, ECHR 2006 XIII). The Court must
solely determine whether, once a State has voluntarily decided to
provide such education free of charge, it may deny that benefit to a
distinct group of people, for the notion of discrimination includes
cases where a person or group is treated, without proper
justification, less favourably than another, even though the more
favourable treatment is not called for by the Convention (see
Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28
May 1985, § 82, Series A no. 94; Ünal Tekeli v. Turkey,
no. 29865/96, § 51 in limine, ECHR 2004 X
(extracts); Zarb Adami v. Malta, no. 17209/02, § 73, ECHR
2006 VIII; Kafkaris v. Cyprus [GC], no. 21906/04, §
161 in limine, ECHR 2008 ...; and J.M. v. the United
Kingdom, cited above, § 45 in fine).
- Having
thus clarified the limits of its inquiry, the Court starts it by
observing that a State may 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, do not contribute to their
funding. It may also, in certain circumstances, justifiably
differentiate between different categories of aliens residing in its
territory. For instance, the preferential treatment of nationals of
Member States of the European Union – some of whom were
exempted from school fees when Bulgaria acceded to the Union (see
paragraph 32 above) – may be said to be based on an objective
and reasonable justification, because the Union forms a special legal
order, which has, moreover, established its own citizenship (see,
mutatis mutandis, Moustaquim v. Belgium, 18 February
1991, § 49 in fine, Series A no. 193, and C. v.
Belgium, 7 August 1996, § 38, Reports 1996 III).
- Although
similar arguments apply to a certain extent in the field of education
– which is one of the most important public services in a
modern State – they cannot be transposed there without
qualification. It is true that education is an activity that is
complex to organise and expensive to run, whereas the resources that
the authorities can devote to it are necessarily finite. It is also
true that in deciding how to regulate access to education, and in
particular whether or not to charge fees for it and to whom, a State
must strike a balance between, on the one hand, the educational needs
of those under its jurisdiction, and, on the other, its limited
capacity to accommodate them. However, the Court cannot overlook
that, unlike some other public services (see Nitecki v.
Poland, no. 65653/01, 21 March 2002, and Pentiacova and Others
v. Moldova (dec.), no. 14462/03, ECHR 2005 I, regarding
health care; Budina v. Russia (dec.), no. 45603/05, ECHR
2009 ...; Carson and Others, cited above, § 64;
Zeïbek, cited above, §§ 37 40; and
Zubczewski v. Sweden (dec.), no. 16149/08, 12 January 2010,
regarding pensions; and Niedzwiecki v. Germany, no. 58453/00,
§§ 24 and 33, 25 October 2005; Okpisz v. Germany,
no. 59140/00, §§ 18 and 34, 25 October 2005; Weller
v. Hungary, no. 44399/05, § 36, 31 March 2009; Fawsie,
cited above, §§ 27 28; and Saidoun, cited
above, §§ 28 29, regarding child benefits) education
is a right that enjoys direct protection under the Convention. It is
expressly enshrined in Article 2 of Protocol No. 1 to the
Convention (see Case “relating to certain aspects of the
laws on the use of languages in education in Belgium”
(merits), cited above, pp. 30 31, § 3). It is also a very
particular type of public service, which not only directly benefits
those using it but also serves broader societal functions. Indeed,
the Court has already had occasion to point out that “[i]n a
democratic society, the right to education ... is indispensable to
the furtherance of human rights [and] plays ... a fundamental
role...” (see Leyla Şahin, cited above, §
137). Moreover, in order to achieve pluralism and thus democracy,
society has an interest to integrate minorities (see Konrad and
Others, cited above).
- For
the Court, the State’s margin of appreciation in this domain
increases 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 so far remains optional
for many people, higher fees for aliens – and indeed fees in
general – seem to be commonplace and can, in the present
circumstances, be considered fully justified. The opposite goes for
primary schooling, which provides basic literacy and numeracy –
as well as integration into and first experiences of society –
and is compulsory in most countries (see Konrad and Others,
cited above).
- Secondary
education, which is at issue in the present case, falls between those
two extremes. That distinction is confirmed by the difference of
wording between paragraphs (a), (b) and (c) of Article 28 § 1 of
the United Nations Convention on the Rights of the Child, the first
of which enjoins States to “[m]ake primary education compulsory
and available free to all”, whereas the second and the third
merely call upon them to “[e]ncourage the development of
different forms of secondary education ... and take appropriate
measures such as the introduction of free education and offering
financial assistance in case of need” and to “[m]ake
higher education accessible to all on the basis of capacity by every
appropriate means” (see paragraph 33 above). It is also
confirmed by the differentiation between those three levels of
education in the International Covenant on Economic, Social and
Cultural Rights (see paragraph 34 above). However, the Court is
mindful of the fact that with more and more countries now moving
towards what has been described as a “knowledge based”
society, secondary education plays 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 constitutes a
barrier to successful personal and professional development. It
prevents the persons concerned from adjusting to their environment,
and entails far reaching consequences for their social and
economic well being.
- Those
considerations militate in favour of the Court’s applying
stricter scrutiny to the assessment of the proportionality of the
measure affecting the applicants.
- In
assessing that proportionality the Court does not need, in the very
specific circumstances of this case, to determine whether the
Bulgarian State is entitled to deprive all irregularly residing
aliens from educational benefits – such as free education –
that it has agreed to provide to its nationals and certain limited
categories of aliens. It is not the Court’s role to consider in
the abstract whether national law conforms to the Convention (see,
among other authorities, McCann and Others v. the United Kingdom,
27 September 1995, § 153, Series A no. 324; Pham Hoang v.
France, 25 September 1992, § 33, Series A no. 243;
Etxeberria and Others v. Spain, nos. 35579/03, 35613/03,
35626/03 and 35634/03, § 81, 30 June 2009; and Romanenko and
Others v. Russia, no. 11751/03, § 39, 8 October 2009). It
must confine its attention, as far as possible, to the particular
circumstances of the case before it (see, among other authorities,
Wettstein v. Switzerland, no. 33958/96, § 41, ECHR
2000 XII, and Sommerfeld v. Germany [GC], no. 31871/96,
§ 86, ECHR 2003 VIII). The Court will therefore primarily
have regard to the personal situation of the applicants.
- On
that point, the Court observes, at the outset, that the applicants
were not in the position of individuals arriving in the country
unlawfully and then laying claim to the use of its public services,
including free schooling (see paragraph 10 above). Even when the
applicants fell, somewhat inadvertently, into the situation of aliens
lacking permanent residence permits (see paragraphs 11 and 13 16
above), the authorities had no substantive objection to their
remaining in Bulgaria, and apparently never had any serious intention
of deporting them (see paragraphs 13 and 14 above and the final
admissibility decision in the present case, and compare, mutatis
mutandis, with Anakomba Yula v. Belgium, no.
45413/07, § 38, ECHR 2009 ... (extracts)). Indeed, at the
material time the applicants had taken steps to regularise their
situation (see paragraphs 13 16 above). Thus, any considerations
relating to the need to stem or reverse the flow of illegal
immigration clearly did not apply to the applicants’ case
(contrast, mutatis mutandis, with 15 Foreign Students v.
the United Kingdom, nos. 7671/76 and fourteen others, Commission
decision of 19 May 1977, Decisions and Reports 9, p. 185; with
Sorabjee v. the United Kingdom, no. 23938/94, Commission
decision of 23 October 1995, unreported; with Dabhi v. the United
Kingdom, no. 28627/95, Commission decision of 17 January 1997,
unreported; and with Vikulov and Others v. Latvia (dec.), no.
16870/03, 25 March 2004).
- Nor
can it be said that the applicants have tried to abuse the Bulgarian
educational system (see, mutatis mutandis, Weller v.
Hungary, no. 44399/05, § 36, 31 March 2009). It was not
their choice to settle in Bulgaria and pursue their education there;
they came to live in the country at a very young age, because their
mother had married a Bulgarian national (see paragraph 10 above). The
applicants could not realistically choose to go to another country
and carry on their secondary studies there (see paragraphs 9 and 10
above). Moreover, there is no indication that the applicants, who
were fully integrated in Bulgarian society and spoke fluent Bulgarian
(see paragraph 11 above), had any special educational needs which
would have required additional financing for their schools.
- However,
the authorities did not take any of those matters into account.
Indeed, since section 4(3) of the 1991 National Education Act and the
fee setting decision of the Minister of Education issued in July
2004 pursuant to that section (see paragraphs 18 and 32 above) made
no provision for a possibility to request an exemption from the
payment of school fees, it does not seem that the authorities could
have done so.
- The
Court, for its part, finds that in the specific circumstances of the
present case the requirement for the applicants to pay fees for their
secondary education on account of their nationality and immigration
status was not justified. There has therefore been a violation of
Article 14 of the Convention taken in conjunction with Article 2 of
Protocol No. 1.
- In
view of that conclusion, it is not necessary to examine the complaint
under Article 2 of Protocol No. 1 taken alone (see, mutatis
mutandis, Darby, § 35; Pla and Puncernau, § 64;
and Oršuš and Others, § 186, all cited
above).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed, firstly, compensation in respect of pecuniary
damage. Mr Anatoliy Ponomaryov sought the reimbursement of 65 euros
(EUR)
and 1,250 Bulgarian levs (BGN) which he had paid in fees to obtain a
permanent residence permit, BGN 500 paid as a fine, EUR 800 paid in
school fees and BGN 2,500 paid in court fees and for photocopies,
postage and the translation of documents. Mr Vitaliy Ponomaryov
sought the reimbursement of EUR 65 and BGN 1,250 which he had paid in
fees to obtain a permanent residence permit, and BGN 10,000 paid in
school and court fees and for the translation of documents, plus BGN
2,350 in litigation expenses. The applicants did not submit any
documents in support of their claims, stating that they had submitted
such documents earlier in the proceedings.
- The
applicants secondly claimed EUR 50,000 each in respect of
non pecuniary damage.
- The
Government submitted that the sums claimed in respect of pecuniary
damage did not relate to the violation found. As to the claims in
respect of non pecuniary damage, they argued that the amounts
sought were exorbitant and unjustified. In their view, any award
under this head should reflect solely the damage sustained as a
result of the violation found by the Court, and should not exceed the
usual amounts awarded in such cases.
- Following
the conclusion of the proceedings brought by the school against Mr
Vitaliy Ponomaryov to recover the fees due by him (see paragraph 30
above), this applicant additionally claimed BGN 6,744.45 – the
sum total that he was ordered to pay in fees, interest and costs of
the proceedings – in respect of pecuniary damage. The
Government did not comment on that additional claim.
- The
Court observes that the sums paid by the two applicants in fees for
obtaining permanent residence permits and by the first applicant as a
fine for residing illegally in Bulgaria (see paragraph 16 above and
the admissibility decisions in the present case) bear no causal
relation to the violation found. No award can therefore be made in
respect of them. As regards the court fees and other expenses, the
applicants did not provide a breakdown allowing the Court to
determine whether and to what extent they relate to the violation
found. In these circumstances, and having regard to the terms of Rule
60 §§ 2 and 3 of its Rules, the Court rejects this part of
the claim.
- As
regards the sums allegedly paid by the applicants in school fees, the
Court is satisfied that they have a direct causal connection with the
violation found in the present case. However, the applicants have not
proved to the Court’s satisfaction that they have been forced
to pay or have actually paid the sums in question. In these
circumstances, the Court does not make any award in respect of them
(see, mutatis mutandis, Steel and Morris v. the United
Kingdom, no. 68416/01, § 105, ECHR 2005 II).
- On
the other hand, the Court considers that the applicants suffered a
certain amount of frustration on account of the discrimination of
which they were victims. However, the amounts claimed by them in this
respect appear excessive. Ruling on an equitable basis, as required
under Article 41, the Court awards each of them EUR 2,000, plus
any tax that may be chargeable.
B. Costs and expenses
- The
applicants sought the reimbursement of EUR 4,000 incurred for their
legal representation at the domestic level and before the Court.
- The
Government disputed the claim as unproven and unrealistic.
- According
to the Court’s case law, applicants are entitled to the
reimbursement of their costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. Moreover, legal costs are only
recoverable to the extent that they relate to any violation found
(see D.H. and Others v. the Czech Republic, cited above, §
220). In the present case, having regard to the information in its
possession and the above criteria, and noting that part of the
application was declared inadmissible and another part struck out of
the list (see paragraph 5 above), the Court considers it reasonable
to award jointly to the applicants EUR 2,000, plus any tax that may
be chargeable to them.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
14 of the Convention taken in conjunction with Article 2 of Protocol
No. 1;
- Holds that it is not necessary to examine the
application separately under Article 2 of Protocol No. 1 taken alone;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 §
2 of the Convention, the following amounts, to be converted into
Bulgarian levs at the rate applicable at the date of settlement:
(i) to
the first applicant, EUR 2,000 (two thousand euros), plus any tax
that may be chargeable, in respect of non pecuniary damage;
(ii) to
the second applicant, EUR 2,000 (two thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(iii) jointly
to both applicants, EUR 2,000 (two thousand euros), plus any tax that
may be chargeable to them, in respect of costs and expenses;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
