March 2018 Briefing: Judgements in the European Court of Human Rights

Dear friends.

This year begins with some very good news about an important judgement in the European Court of Human Rights (ECtHR), which sets out very clearly that the right for Disabled students to be included in mainstream education falls under the human rights provisions. On 30th January 2018 the court upheld the complaint of Enver Şahin, a Disabled student, that the failure of a Turkish university to make reasonable adjustments to buildings was a violation of his human right to mainstream education. We’ll also be looking at two other ECtHR cases, including one about support for Disabled children in mainstream education.

We wish you a very happy Easter and Passover.

In solidarity,

Simone Aspis

ALLFIE’s Campaigns & Policy Coordinator

Contents

1. European Convention on Human Rights
2. Explanation of articles used around Disabled pupils’ and students’ human rights to mainstream education
3. Enver Şahin v Turkey 2018
4. Ceyda Evrim Çam v Turkey 2016
5. Implications of these two cases
6. Ştefan-Moshe and Luminiţa Stoian v Romania court hearing
7. Brexit

1. European Convention on Human Rights

The European Convention on Human Rights (ECHR) is a set of human rights standards that European countries have signed up to. It was made part of UK law by the Human Rights Act 1998. The ECHR covers all areas of our lives including access to mainstream education. For easy read information about the ECHR see https://www.echr.coe.int/Documents/Simplified_Conv_ENG.pdf Cases under the ECHR are heard by the European Court of Human Rights (ECtHR).

This briefing focuses on some very important cases:

Enver Şahin v Turkey case. The European Court of Human Rights said that Disabled students have a human right to mainstream education. Disabled students can expect that universities, colleges and schools will be accessible to wheelchair users. We will also look at the case of Ceyda Evrim Çam v Turkey 2016 which concerns the refusal of a music school to admit a blind student.

Ştefan-Moshe Stoian and Luminiţa Stoian v Romania. We are waiting for a date for the hearing. The case involves two Disabled children in mainstream schools. The court are being asked if Romania is breaking human rights law by not providing the support Disabled pupils need to be educated in mainstream school. It is not enough for the school to allow Disabled children through the front door of their building.

These cases are important because we want UK education law to be based on Disabled pupils’ and students’ human rights to mainstream education. Judgements in ECtHR cases against other countries cannot be ignored in the UK. Judges interpreting UK legislation must take into account rulings by the ECtHR when deciding if an individual’s human rights have been violated.

Before the case is heard by the ECtHR, individuals must have gone through all legal remedies in their own country including Supreme Court appeals.

2. What are Disabled people’s human rights to mainstream education?

Four different rights are considered when deciding if Disabled pupils’ and students’ human rights to education have been violated by the state. The right to family and private life, not to be tortured and not to be discriminated against are in the original ECHR document. The right to education has also been added under Article 2 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Whilst there is no explicit mention of inclusive education, nevertheless ECtHR judges have ruled that Disabled pupils’ and students’ rights to mainstream education fall under Articles 2 and 14.

Article 2, the right to education, states that: “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 prohibits discrimination on any ground or status for anyone securing their human rights under the convention.

The ECtHR have considered and continue to consider whether failure of state and state-funded mainstream educational institutions to implement reasonable accommodations for Disabled pupils and students falls under the remit of ECHR Articles 3 and 8.

Article 3 prohibits state-sponsored torture, and “inhuman or degrading treatment or punishment” without exceptions or limitations on this right.

Article 8 confers the right to respect for private and family life; this includes an individual’s right to wellbeing and dignity. “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary.”

3. Enver Şahin v Turkey 2018

In 2007, Enver, a Mechanics student, wanted to resume his studies after becoming a wheelchair user due to a serious injury. Enver requested that the technical faculty of Firat University adapt their premises so that he could return to university and complete his studies. The faculty refused, citing financial constraints. Without any formal assessment of his needs, the university suggested as an alternative form of reasonable accommodation that they appoint a Personal Assistant to enable him to move around the three-storey building.

On the 30th January the ECtHR held that the state, the national courts and the university did not sufficiently weigh up competing interests whilst considering solutions that would allow the student to complete his studies under conditions as close as possible to those provided to his non-disabled peer group. The university requested exemption from anti-discrimination provisions because their campus had been constructed in 1988, but the ECtHR decided that the student’s access to the university’s facilities could not be left unresolved pending the full amount needed to complete all the major adjustment works. The judges found in Enver’s favour that this was a breach of his Article 2 and 14 rights when read together.

The university’s alternative solution that they provide a personal assistant would not promote Enver’s privacy and personal dignity under ECHR Article 8 and Article 14 when read together since it disregards the student’s need to live as autonomous a life as possible. Furthermore, without a formal assessment of the student’s needs there was no reason given by the university as to why appointing a PA, which would have interfered with his privacy, was justified and necessary. In other words, Disabled and non-disabled students should enjoy the same experience of independence.

4. Ceyda Evrim Çam v Turkey 2016

In 2004 blind student Ceyda Evrim Çam applied to the Turkish National Music Academy, attached to Istanbul Technical University, and passed the entrance exams. As part of the enrolment procedure, the university commissioned a hospital to assess Ms Çam and affirm her physical fitness for the music course. The medical report concluded that Ms Çam “could attend lessons in the sections of the music academy where eyesight was not required”. The University asked the hospital to clarify whether Ms Çam was physically fit to attend lessons, on the grounds that the whole academy required eyesight. Unfortunately the hospital amended the report stating that she was unfit to attend lessons without considering any reasonable accommodations that the university could make. The lower and higher courts upheld the university’s refusal to admit Ms Çam.

The court upheld disability discrimination under ECtHR Articles 2 and 14 on the following grounds:

• The sole reason for rejection was Ms Çam’s blindness, as set out in the medical certificate.
• The University’s lack of infrastructure for Disabled students and their refusal to make reasonable accommodations.
• The University’s lack of an objective and justifiable reason why blindness could prevent attendance on a music course.
• The University’s lack of an objective and justifiable reason why Ms Çam could not benefit from a musical education.

5. Why are the Enver Şahin and Ceyda Evrim Çam cases important for ALLFIE and Disabled students?

The ECtHR upheld that education institutions that fail to make reasonable accommodations for Disabled students without objective and reasonable justification are violating Disabled students’ human rights. UK courts are required to take the judgement into account, making it clear that the UK government has a duty to ensure universities uphold Disabled students’ rights to mainstream education in accessible premises or to make accommodations to the learning environment (including curriculum). However, the rulings do not compel all education providers to make reasonable accommodations such as making their buildings fully accessible as decisions are determined on a case-by-case basis.

There is a separate human rights case concerning Disabled pupils’ rights to mainstream education, which will be heard by the ECtHR some time during 2018:

6. Ştefan-Moshe Stoian and Luminiţa Stoian v Romania

Parents Ştefan-Moshe and Luminiţa Stoian brought a case on behalf of their Disabled children regarding their right to mainstream education. Complaints centred around the following failures of the school/education authority:

• Lack of implementation of an inclusion plan. The children attended two mainstream schools. One of the children had an individual education plan consisting of a specially adapted timetable, curriculum, methods of testing and appropriate physical education as well as additional time to complete written examinations. Activities were designed to facilitate the Disabled child’s inclusion within lessons by the teachers. Also rehabilitation and physio programmes were required, involving daily exercise. The inclusion plan was not fully and consistently implemented by the school or properly funded by the authorities. As a result, the pupil did not benefit from mainstream education on the same terms as his non-disabled peer group.
• Lack of accessibility of school buildings. The Stoian children lacked access to important facilities and extra-curricular activities in school and to school outings in the wider community. One parent paid for small adjustments in the classroom and to the toilet, but the child still required personal assistance with carrying books, his lunch box and getting around the building. The school leadership instructed staff and pupils not to provide assistance on health and safety grounds, having previously allowed this.
  The mother acted as her son’s unpaid PA, without agreeing rules with the school, and complaints arose about this arrangement and the mother’s conduct. The head repeatedly asked her to leave the school premises, but she refused to leave her son without assistance. As a result the head called the police who forcibly removed her in handcuffs in full view of the pupils. Subsequently the school barred one of the Disabled children from attending the school until the conflict could be resolved. The parents argue this constitutes exclusion on the grounds of disability.
• Lack of legal redress. The parents argue there are insufficient legal remedies to deal with disability-related discrimination within schools; eg the Romanian court cannot issue an injunction to stop action that violates a Disabled child’s right to mainstream education.
• Lack of qualified personnel. The authorities and school failed to appoint relevant staff to facilitate the pupils’ inclusion in mainstream education, affecting their participation.

Legal issues under Articles 2 and 14

• The school’s failure to differentiate the Disabled child from his non-disabled peers at the school.
• Lack of any effective legal remedy or enforcement compelling authorities and schools to fund and make reasonable accommodations for Disabled children within mainstream education.

Legal issues under Articles 3 and 8

• The manner in which the children’s integration into mainstream school was handled affected how they were treated and their dignity and family life.
• The school’s lack of response to ongoing harassment and abuse of Disabled children by their classmates
• The state’s failure to arrange personnel to implement the inclusion plan.
• The parent funding reasonable adjustments and acting as an unpaid PA which placed her in poverty.
• The treatment of the parents and the impact upon their children.

What are the implications of this case?

If the court upholds the Stoians’ complaints then it becomes clear that parents’ right for their child to be educated in mainstream school will be upheld as a human right, and that state failure to provide effective legislation and implement reasonable accommodations with the aim of promoting inclusive education practice will be a violation of children’s human rights.

7. Brexit

ALLFIE has spent some time researching the possible implications for UK compliance with the ECHR after the UK departs from the European Union. ALLFIE believes that it will not be affected by Brexit. The Council of Europe oversees our compliance with the European Convention on Human Rights, not the European Union.

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