European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> Marcel GROZA v Romania - 31017/05 [2012] ECHR 420 (8 March 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/420.html
Cite as: [2012] ECHR 420

[New search] [Contents list] [Printable RTF version] [Help]

THIRD SECTION

DECISION

Application no. 31017/05
Marcel GROZA
against Romania

The European Court of Human Rights (Third Section), sitting on 21 February 2012 as a Committee composed of:

Egbert Myjer, President,
Luis López Guerra,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 4 August 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marcel Groza, is a Romanian national who was born in 1959 and lives in Cluj-Napoca.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows:

1. Background information

The case concerns the special educational needs of the applicant’s son, born in 1991 who suffers from his birth from the Little’s disease. The boy lived only with his father since he was four when his mother had left him.

For three years the applicant’s son attended a special school. The applicant was not satisfied with the conditions offered by that school alleging that the school personnel did not take care of children and its curriculum was not adapted to the special needs of his son.

Moreover, the applicant had a tense relationship with the manager of the school. The latter lodged notifications with the competent authorities on the applicant’s alleged abusive sexual behaviour towards his son. A special commission for the protection of children carried out an investigation and concluded that “the notifications concerning a potential sexual abuse of the child had no foundation”. On 26 April 2004 the applicant lodged a criminal complaint against the manager for slanderous statements. The Cluj Napoca District Court dismissed it on the ground that the manager had acted without having the intent to damage the reputation of the applicant.

The applicant also claimed that the attendance of the special school was very difficult because besides psychical problems and motor difficulties the child often suffered from breathing affections. According to a medical certificate issued by the doctor who had the boy in care since he was six years old, he suffered not only of his chronic disease but also of multiple breathing affections developed because of an immune deficit and an anaemic syndrome. He was also affected by psychical problems because he had an obsessive phobic personality. The doctor also mentioned that the boy had never presented any trace of physical abuse.

2. The application for the enrolment of the applicant’s son in a school providing education at home

For the reasons mentioned above the applicant decided to find another school for his son. Therefore, at the beginning of 2003 he submitted an application for enrolment of his son with a school located in their city which offered education at home.

According to the applicable legislation the admission depended on the authorisation granted by a special commission (“Comisia pentru protecţia copilului”). On 30 November 2004 the commission issued a decision dismissing the applicant’s request and recommended the enrolment of the child in a special school. It based its decision on a thorough assessment of the child. According to a certificate attached to the decision the child suffered from a severe neuromotor deficiency.

The commission also ordered the inclusion of the applicant and his son in a program of psychological counselling.

3. Legal proceedings concerning the dismissal of the application

The applicant was strongly opposed to this as he thought that it was more adequately for his son to be educated at home. Therefore, he challenged the decision in court alleging that the commission had wrongly interpreted the applicable law. He stressed the role of the parents in deciding the form of education for their children and concluded that the commission’s decision was abusive as it did not take into account the special needs of his son.

On 28 February 2005 the Cluj County Court dismissed his complaint holding that the conditions offered by the recommended school were appropriate for his son’s special medical condition. It noted that the applicant’s son did not attend any school in the year 2004 2005. It also stated that the special commission carried out a thorough assessment of the child’s condition and made a decision in the best interest of the child who needed to be included in a form of education which ensured his socialisation and an adequate treatment for motor recovery. Further it noted that according to the information provided by the special school to which he was assigned the transportation from home was ensured by school. It concluded that the commission’s decision had not infringed the father’s right to decide for his son and that the interest of the child would not be protected by his isolation at home.

The applicant lodged an appeal on points of law claiming, inter alia, that the special commission and the first-instance court had not observed the legal provisions according to which a disabled child had the right to be educated at home. In its observations the special commission argued that it took into account the best interests of the child, namely his enrolment in a school which could offer to him a full package of specialised services, physical therapeutic sessions, support groups, education, and socialisation without being deprived of the contact with other children of his age. It further claimed that by his opposition to the enrolment of his son in a special school, the applicant had infringed his son’s right to education exercising in an abusive way his parental rights.

On 28 April 2005 the Cluj Court of Appeal dismissed the applicant’s appeal on points of law. It noted that the decision of the special commission had been based on a social investigation (anchetă socială), a medical report for establishing the degree of handicap, a psychological report, a report of complex assessment of the disabled child and medical certificates. It further noted that the last psychological report drafted on 12 April 2005 revealed that the child must attend a special establishment for physical recovery combined with formal education which could allow the direct contact with the doctor and the physical therapist, as well as his daily interaction with other persons. It concluded that as the father had not proved that he was able to ensure the necessary conditions for his son, the latest’s education, specialist treatment and socialisation would be better ensured by attending the special school recommended by the commission.

4. Follow-up information about the applicant’s son education

According to the latest information provided by the applicant on 3 March 2010, he did not enrol his son in the recommended school. Accordingly, he received no school education from 2004 until 2009.

In 2009 the applicant was granted a request for education at home and consequently he restarted school at 19 years in the fifth grade. According to the applicant, his son’s physical condition had deteriorated so much that he became incapable to be removed.

The applicant did not provide detailed information or copies of the documents concerning his new request for education at home.

B. Relevant domestic law

According to Article 29 § 6 of the Romanian Constitution the parents have the right to ensure the education of their minor children in conformity with their own convictions.

Article 180 of the Education Act (Law no. 84/1995) provides that the parent has the right to choose the form of education of his minor child.

Article 18 § 1 (b) of the Emergency Government Ordinance no. 102/1999 as subsequently amended by Law no. 10/2003 into force at the material time stipulated that the disabled children, incapable to be removed, were entitled to benefit from education at home.

Article 21 of Law no. 343/2004 provides for the obligation of the disabled persons to observe the individual program for the recovery and social reintegration established by the commission for the protection of the child.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the unfairness of the proceedings, in particular their outcome because of the incorrect interpretation by the domestic courts of the applicable legislation.

Relying on Article 2 of Protocol No. 1 to the Convention, he claimed that his son was refused access to a form of education provided by law and adapted to his special needs by the abusive decisions of the Romanian authorities.

THE LAW

The applicant complained that he is a victim of a breach of Article 2 of Protocol No. 1 to the Convention because his son had been denied the right of access to education at home by Romanian authorities. Article 2 of Protocol No. 1 to the Convention reads as follows:

“No person shall be denied the right to education.”

The Court recalls that the right to education guaranteed by the first sentence of Article 2 of Protocol No. 1 to the Convention by its very nature calls for regulation by the State, but such regulation must never injure the substance of the right nor conflict with other rights enshrined in the Convention or its Protocols.

By binding themselves not to “deny the right to education”, the Contracting States guarantee to anyone within their jurisdiction a right of access to educational institutions existing at a given time and the possibility of drawing, by official recognition of the studies completed, profit from the education received (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A no. 23 and the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 31-32, § 4, Series A no. 6).

The Court further recognised that in spite of its importance the right to education is not absolute, but may be subject to limitations, provided that there is no injury to the substance of the right (Belgian Linguistics Case, cited above, p. 28, § 5 and Campbell and Cosans v. the United Kingdom, 25 February 1982, § 41, Series A no. 48).

In this respect, it has been recognised that Article 2 of Protocol No. 1 does not necessarily entail a right of access to a particular educational institution (Simpson v. the United Kingdom, no. 14688/89, 24 February 1998).

Turning to the circumstances of the instant case, the Court notes that the request submitted by the applicant for enrolment of his son in a school providing education at home was dismissed. A special commission for the protection of the children, which according to applicable legislation had to give a prior authorisation, disagreed with the choice made by the applicant and recommended a special school more adapted to the special needs of the child. It held that the applicant’s son needed to be included in a form of education which ensured his socialisation and an adequate treatment for motor recovery.

The Court recalls that its task is that of a supervisory body as regards the observance of the Convention. It is not its task to substitute its decision or policy views for that of domestic authorities. While these authorities must place weight on parental opinion, respect is only due to opinions on the part of the parents which do not conflict with the fundamental right of the child to education, the whole of Article 2 of Protocol No. 1 to the Convention being dominated by its first sentence.

In the instant case, the interests of the applicant’ son were given precedence by the Romanian authorities and it was thought to be in his best interest to place him in a special school which offered not only transportation facilities but also an integrated package of specialised services, physical therapeutic sessions, support groups, education, socialisation without being deprived by the contact with other children of his age. Thus, the special commission did the assessment of his needs on the basis of specialist reports, such as: a medical report for establishing the degree of handicap, a psychological report, a report of complex assessment of the disabled child and medical certificates. By a well reasoned decision rendered on 28 April 2005, the Cluj Court of Appeal dismissed the applicant’s complaint against the decision of the commission holding that he had not proven that he could ensure similar or close conditions at home to those offered by the special school.

The Court also notes that the applicant’s son remained at home without any form of education for five years because his father did not want to accept the decisions of the competent authorities to attend a special school more adapted to his special needs. In these circumstances, the Court finds that nothing can be imputed to the Romanian authorities, which as results from the material examined in the present file, observed the right of the applicant’s son to have an as effective education as possible. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The applicant also complained that he had not had a fair hearing of his case, contrary to Article 6 § 1 of the Convention. The Court recalls that it is not called upon to examine the alleged errors of facts and law committed by the domestic judicial authorities, insofar as no unfairness of the proceedings can be detected and the decisions reached cannot be considered arbitrary. On the basis of the materials in its possession, and in view of its conclusions concerning Article 2 of Protocol No. 1, the Court concludes that within the framework of the proceedings, the applicant was able to introduce all necessary arguments in defence of his interests, and the

judicial authorities gave them due consideration. The decisions of the domestic courts do not appear unreasonable or arbitrary. Accordingly, the Court concludes that this complaint 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.

Marialena Tsirli Egbert Myjer
Deputy Registrar President