Page 37 - Šolsko polje, XXXI, 2020, 3-4: Convention on the Rights of the Child: Educational Opportunities and Social Justice, eds. Zdenko Kodelja and Urška Štremfel
P. 37
s. kraljić ■ implementation and protection of the child’s right to education
In the Belgian Linguistic case, the applicants and their children (in
total, over 800 persons) asserted that the law of the Dutch-speaking re-
gions in which they lived did not include adequate provisions for French-
language education. They also argued that the state did not allow the ap-
plicants’ children to attend French classes in certain places, forcing the
applicants to enrol their children in local schools or send them further
afield, entailing risks and hardships. The ECtHR opined that the right to
education implied the right to be educated in the national language, and
did not include the provision that the parents’ linguistic preferences be re-
spected (Belgian Linguistic case). Further, in Appel-Irrgang and Others v.
Germany, the ECtHR highlighted that the inclusion of compulsory secular
ethics5 classes without any possibility of exemption fell within the margin
of appreciation afforded to states under Article 2 of Protocol No. 1.
The right to education is not absolute and may be subject to implic-
it limitations (Council of Europe, 2019, p. 5). Interferences must meet the
principle of proportionality requirements and never violate the substance
of the right to education (Grabenwarter, 2014, p. 392). The states enjoy a
certain margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify different treatment. In
the ECtHR’s opinion, a state’s margin of appreciation in this domain in-
creases with education level, in inverse proportion to the importance of
that education for those concerned and for society at large. Thus, at the
university level, which remains optional for many people, higher fees for
foreign students seem commonplace and might be considered fully justi-
fied in the present circumstances. Yet, the opposite goes for primary edu-
cation, which provides basic literacy and numeracy as well as integration
into and first experiences of society and is compulsory in most countries.
Secondary education (relevant to the present case) falls between these two
extremes. The difference is seen in the ordering of sub-paragraphs (a), (b)
and (c) of Article 28(1) UNCRC, where the first paragraph prescribes that
states shall make primary education compulsory and available free to all.
The second and third paragraphs merely call on the states to encourage
the development of different forms of secondary education and appropri-
ate measures like the introduction of free education and offering financial
assistance in case of need and to make higher education accessible to all
based on capacity by all appropriate means. The ECtHR wrote that sec-
ondary education plays an ever-increasing role in successful personal de-
velopment and individuals’ social and professional integration. In modern
5 Proceeding from Article 17(2) of the Slovenian Basic Education Act, the school must
(among others) offer non-confessional instruction on religions and ethics.
35
In the Belgian Linguistic case, the applicants and their children (in
total, over 800 persons) asserted that the law of the Dutch-speaking re-
gions in which they lived did not include adequate provisions for French-
language education. They also argued that the state did not allow the ap-
plicants’ children to attend French classes in certain places, forcing the
applicants to enrol their children in local schools or send them further
afield, entailing risks and hardships. The ECtHR opined that the right to
education implied the right to be educated in the national language, and
did not include the provision that the parents’ linguistic preferences be re-
spected (Belgian Linguistic case). Further, in Appel-Irrgang and Others v.
Germany, the ECtHR highlighted that the inclusion of compulsory secular
ethics5 classes without any possibility of exemption fell within the margin
of appreciation afforded to states under Article 2 of Protocol No. 1.
The right to education is not absolute and may be subject to implic-
it limitations (Council of Europe, 2019, p. 5). Interferences must meet the
principle of proportionality requirements and never violate the substance
of the right to education (Grabenwarter, 2014, p. 392). The states enjoy a
certain margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify different treatment. In
the ECtHR’s opinion, a state’s margin of appreciation in this domain in-
creases with education level, in inverse proportion to the importance of
that education for those concerned and for society at large. Thus, at the
university level, which remains optional for many people, higher fees for
foreign students seem commonplace and might be considered fully justi-
fied in the present circumstances. Yet, the opposite goes for primary edu-
cation, which provides basic literacy and numeracy as well as integration
into and first experiences of society and is compulsory in most countries.
Secondary education (relevant to the present case) falls between these two
extremes. The difference is seen in the ordering of sub-paragraphs (a), (b)
and (c) of Article 28(1) UNCRC, where the first paragraph prescribes that
states shall make primary education compulsory and available free to all.
The second and third paragraphs merely call on the states to encourage
the development of different forms of secondary education and appropri-
ate measures like the introduction of free education and offering financial
assistance in case of need and to make higher education accessible to all
based on capacity by all appropriate means. The ECtHR wrote that sec-
ondary education plays an ever-increasing role in successful personal de-
velopment and individuals’ social and professional integration. In modern
5 Proceeding from Article 17(2) of the Slovenian Basic Education Act, the school must
(among others) offer non-confessional instruction on religions and ethics.
35
