Col·lecció Segon Premi de Recerca en Drets Humans ... · Language and the Right to Education...

Language and the Right to Education under the European Convention on Human Rights

Maria Carreras Godall

2a convocatòria del Premi de Recerca en Drets Humans

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www.gencat.cat/dirip

The Office for the Promotion of Peace and Human Rights is a department of the Government of Catalonia, whose core mission is to develop public policies for the promotion of peace and human rights.

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3

Introduction

1. INTRODUCTION

2. EDUCATION AND THE USE OF LANGUAGE IN SPAIN

2.1 THE RIGHT TO EDUCATION

2.2 EDUCATION IN CATALONIA: USE OF LANGUAGE

The reestablishment of Catalan in schools

Constitutional Court’s Judgement nº 337/1994

3. THE INTERPRETATION OF THE EUROPEAN CONVENTION ON HUMAN

RIGHTS

3.1 INTRODUCTION

3.2 THE STRASBOURG SYSTEM

Vienna convention on the law of treaties

3.3 CONCLUSIONS

4. THE RIGHT TO EDUCATION UNDER THE ECHR

4.1 “NO PERSON SHALL BE DENIED THE RIGHT TO EDUCATION”

“No person shall be denied (...)”

“(...) the Right to Education”

4.2 “(…) EDUCATION AND TEACHING IN CONFORMITY WITH THEIR

OWN RELIGIONS AND PHILOSOPHICAL CONVICTIONS”

“(...) Teaching in Conformity with religious (...) convictions”

“(...) Teaching in Conformity with (...) philosophical convictions”

4.3 NO LINGUISTIC RIGHTS INCLUDED IN THE RIGHT TO EDUCATION

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TABLE OF CONTENTS

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5. THE RIGHT TO EDUCATION AND THE PRINCIPLE OF NON-

DISCRIMINATION

5.1 THE CONVENTION AS A WHOLE

5.2 THE NATURE OF ARTICLE 14 ECHR: NON-DISCRIMINATORY TREATMENT

The Doctrine of Margin of Appreciation

5.3 THE “SPANISH CASE”: NEW PERSPECTIVE

Positive Discrimination: Substantive Equality

6. MINORITY RIGHTS

6.1 MINORITY RIGHTS IN THE CONVENTION

6.2 THE CONVENTION AS PART OF INTERNATIONAL AND EUROPEAN LAW

6.3 CONCLUSIONS

7. CONCLUSIONS

7.1 FINAL REMARKS

BIBLIOGRAPHY

INDEX OF CASES

LIST OF ABREVIATIONS

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1. INTRODUCTION37

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This paper is inspired by the overall importance of lan-

guage in education1. Language plays a central role in

the fulfilment of the right to education. It not only en-

ables the transmission of values and concepts but it is

necessary for the achievement of the full development

of human personality, which can be held as the overall

aim of education2. If the pupil does not understand the

language of instruction, the pupil cannot benefit from

education and his right to education is denied.

From cultural perspective the issue of language and

education becomes even more significant. Language is

an intimate element of culture and a creator of the very

basis of one’s personal identity. Knowing a language

not only facilitates communication but also allows peo-

ple to understand the customs, the traditions, and the

way of thinking of a particular culture. This is also the

case in education, where language works not only as

a tool to transmit information but also as a constructor

of identity. Therefore, language plays both a functional

and a substantial role in education: language is not only

an instrument of communication, but also a source of

information in itself.

This paper gives a legal perspective to the role of lan-

guage in education and poses the question of whether

there are linguistic rights on the grounds of education

under the European Convention on Human Rights

(ECHR). It studies the existence of a possible generic

right to be taught in one’s mother language as well as

the possible existence of linguistic rights for cultural mi-

norities in regard to the right of education3. The present

dissertation arises from a real case that was brought

before a national court in Spain.

1 United Nations Educational, Scientific and Cultural Organi-sation “UNESCO”: “Languages play an important role in the inte-gration process in all aspects of public life but especially educa-tion”, International Mother Lan-guage Day, February 2007, Press release. Available at:http://www.eblul .org/ index.php?option=com_content&task=view&id=113&Itemid=37&lang=en (last visit (10/2008).

2 Article 13 of the International Covenant on Economic, Social and Cultural Rights: “(...) edu-cation 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”. Avail-able at: http://www.unhchr.ch/html/menu3/b/a_cescr.htm (last visit 09/2008).

3 Matsuura, Koïchiro (UNESCO director general) referring to the mother language said that “it is the medium for learning respect for oneself, one’s history and one’s culture and, above all, for others and their differenc-es”. Available at: http://portal.unesco.org/culture/en/ev.php-URL_ID=32921&URL_DO=DO_TOPIC&URL_SECTION=201.html (last visit 10/2008).

8Introduction

In the following chapter, the reader will be introduced

to the Spanish case, in which the Constitutional Court

of Spain was called in to examine the legality of a norm

that prevented pupils from receiving classes only in

Spanish within Catalonia. From there the paper moves

on to study the possibility of bringing this particular

case to the European Court of Human Rights.

The Strasbourg system is responsible for safeguarding

the rights covered under the ECHR and plays a sub-

sidiary role to the domestic courts. To see whether the

applicant could succeed in Strasbourg, an analysis of

the right to education and the principle of non-discrim-

ination will be done. After this, the paper concentrates

on analysing Article 2 of the First Protocol ECHR (the

right to education) and Article 14 ECHR (the principle of

non-discrimination).

In the final Chapters, the Spanish case will be examined

from a different perspective. This is done by studying

the relationship of minority rights and linguistic rights

on the grounds of education under the ECHR. This

relationship is first studied under the principle of non-

discrimination and substantive equality and finally as a

need to preserve the cultural identities of minorities. The

question is whether Catalan people would have their

language rights recognised by the Court in Strasbourg

regarding education (if they had not had them) and if so,

if the children of immigrants should also be granted with

these rights.

9

2. EDUCATION AND THE USE OF LANGUAGE IN SPAIN

102. Education and the use of language in Spain

4 Article 27 of the CE “1. Every-one is entitled to education. Free-dom of instruction is recognised. 2. Education shall have as its objective the full development of the human character compatible with respect for the democratic principles of coexistence and for the basic rights and freedoms. 3. The public authorities guarantee the right of parents to ensure that their children receive reli-gious and moral instruction that is in accordance with their own convictions. 4. Elementary edu-cation is compulsory and free. 5. The public authorities guarantee the right of everyone to educa-tion, through general planning of education, with the effective par-ticipation of all parties concerned and the setting up of teaching establishments. 6. The right of individuals and legal entities to set up teaching establishments is recognised, provided they re-spect Constitutional principles. 7. Teachers, parents and, when appropriate, pupils, shall share in the control and management of all the centres maintained by the Administration using pub-lic funds, under the terms to be laid down by the law. 8. The public authorities shall inspect and standardise the educational system in order to guarantee compliance with the law. 9. The public authorities shall give aid to teaching establishments which meet the requirements to be laid down by the law. 10. The auton-omy of universities is recognised, under the terms to be laid down by the law.”

5 Article 149, para. XXX, CE: “regulation of the conditions relative to the obtaining, issuing and standardisation of academic degrees and professional quali-fications and basic rules for the development of Article 27 of the Constitution, in order to guaran-tee the fulfilment of the obliga-tions of the public authorities in this matter”.

6 How the whole educational system works can be found on the web site of the “Ministerio de Educación del Estado Espa-ñol”: http://www.mec.es/educa/sistema-educativo/indexSE.html (last visit 09/2008).

2.1 THE RIGHT TO EDUCATION

The right of education in Spain is safeguarded under

Article 274 of the Spanish Constitution (CE) and the

central government has the power to rule over the ba-

sic features and conditions for the development of this

right5.The central government is responsible for ensur-

ing that this right is effectively executed within Spain

and is responsible for setting the overall framework of

the educational system. The seventeen autonomous

communities are responsible for defining and specify-

ing the education service in its territory. The govern-

ments of the Autonomous Communities establish the

form and conditions by which education is provided,

yet they operate inside the framework designed by the

state law.

The educational system in Spain has been defined

and amended by different State laws. The most im-

portant ones are “Organic Law 8/1985 on the Right to

Education”(LODE), “Organic Law 1/1990 on the Gener-

al Planning of the Education System”(LOGSE) and the

more recent “Organic Law 2/2006 on Education”(LOE) 6.These laws have provided the framework for the

system and have ruled over issues such as minimum

obligatory studies. Figure 1 describes this system.

11

2.2 EDUCATION IN CATALONIA: USE OF LANGUAGE

The regional government, being responsible for defin-

ing education within the framework set above7, has to

specify how the official Spanish languages will be used

(Article 148.1.XVII)8. The regional government is respon-

sible for defining a system that uses Spanish, the com-

mon official language (Article 3.1 CE), and any regional

language9 present; In the case of Catalonia, Catalan.

Age

18171615 414 313 212 111 610 59 48 37 26 1543210

First cycle

Second cycle

Educación Infantil

2nd cycle

1st cycle

1st cycle

2nd cycle

3rd cycle

FPE grado medio

Educación Secundaria

Educación Primaria

Com

pusa

ry e

duca

tion

University Education

1rst and 2ndof Bachillerato

or

University EntranceExam FPE grado superior

3 rd cycle2nd cycle1st cycle

Figure 1The Educational System in SpainInfant / Primary / Secondary educationIntermediate / Upper Vocational Training! CompulsorySource: Teese, Richard (2006)

7 Like many other autonomous communities, Catalonia has adopted regional norms regu-lating the education system. Ar-ticle 131 of Ley Orgánica 6/2006 amending the Statute of Auton-omy of Catalonia says: a) “The Generalitat has exclusive power, in non-university education, over post-compulsory teaching that does not lead to academic or professional certification valid in all the State, and over the educational centres in which this teaching is carried out”. b) The Generalitat has in relation to compulsory and non-compulsory subjects that lead to an academic or professional qualification valid in all the State (…)”. c) In those matters not regulated by Section 2 and in relation to education referred to in said Section, the Generalitat has shared power, while respecting the fundamental aspects of the right to education and the freedom in teaching in non-university education and in accordance with the provision of Article 149.1.30 of the Constitu-tion (…)”.

8 Article 148.1.XVII: “the promo-tion of culture, of research and when applicable the teaching of the language of the Autonomous Community” may, in any case, be assumed by the Autonomous Community”.

9 See, amongst others, Judg-ment 82/1986 of the Constitu-tional Court of 26 June 1986. The court recognises the existence of official regional languages within Spain.


THE REESTABLISHMENT OF CATALAN IN SCHOOLS

In Catalonia, the use of Catalan10 in schools was re-

established by Royal Decree number 2092/1978. The

government of Catalonia, acting according the prin-

ciple of substantive equality11 and taking into account

that Catalan was less protected during Franco’s dic-

tatorship, opened a process of implementation for the

normalisation of Catalan in schools12. It took several

measures for the normalisation of Catalan, most nota-

bly: the Law of Linguistic Normalisation of Catalonia,

published in 1983 “Law 7/1983”, and its consequent

Linguistic Immersion Programme “Decree 362/1983”13.

These norms established Catalan as the language of

educational administration, they grant the right to re-

ceive early education, meaning the two first years of

primary education in the usual language of the child

(Catalan or Spanish) and, in order to ensure that no

child completes compulsory schooling without having

received classes in Catalan, Law 7/1983 also stated

that, as part of secondary education, at least two sub-

jects must be taught in Catalan. “Decree 362/1983” did

not allow for the possibility of the whole of compulsory

education being provided in Spanish and parents wish-

ing for their children to be taught only in Spanish, is-

sued a complaint14 against “this Decree and the subse-

quent norm15. They argued that not enough protection

was given to Spanish.

CONSTITUTIONAL COURT’S JUDGEMENT 337/1994

This judgement was based on the government of Cata-

lonia’s appeal to the Supreme Court of Spain against

the ruling of a lower court in Barcelona.16 The court in

Barcelona claimed that “Decree 362/1983” enacted by

10 Article 3 of the Statute of Cat-alonia defines Catalan as Catalo-nia’s own language.

11 Strubell, Miquel, “Language, Democracy and Devolution in Catalonia”, Current Issues in lan-guage & Society vol. 5, no. 3,1998, pp 146-180, p. 31: “Affirmative Action is therefore legitimate in or-der to break monopolies, be they economic or linguistic. Positive discrimination may be needed, at least temporarily, in order to over-come the effects of a pre-existing discrimination, and thus to achieve equality and equity”. Available at: http://www.multilingual-matters.net/cils/005/0146/cils0050146.pdf (last visit 09/2008).

12 Ferrer, Ferran, “Language, Mi-norities and Education in Spain. The case of Catalonia” Com-parative Education vol. 36, no. 2, 2000, pp. 187-197, p. 192.

13 Areny, Maria & Schaaf, Alie, Catalan, the Catalan language in education in Catalonia, Spain, Mercator-Education, The Nether-lands, 2000. Available at:http://www1.fa.knaw.nl/mercator/regionale_dossiers/PDFs/catalan_in_spain.pdf (last visit 09/2008).

14 Recurso contencioso-admin-istrativo no. 1325/83

15 Order of 8 September 1983 amended by Order of 6 De-cember 1983 develops “Decret 362/1983”

16 Sala de la Contencioso-Ad-ministrativo de la Audiencia ter-ritorial de Barcelona.

13

17 The appeal was made to “Sala Tercera del Tribunal Supremo” 18 “Question of unconstitutional-ity” For an in-depth analysis of how it works, see “Capítulo III, De la cuestión de inconstitucio-nalidad promovida por jueces o tribunales” de la Ley Orgánica 2/1979 del Tribunal Constitu-cional (the Organic Law of the Constitutional Court), Official Spanish Gazette (BOE) 239, 5 October 1979.

19 The Constitutional Court can only deal with the constitutionali-ty of certain laws and not decrees thus the “Question of unconstitu-tionality” was made regarding the law that decree 362/1983 devel-oped. For further information, see Judgments of the Spanish Con-stitutional Court (STC) 76/1990 and 183/1992.

20 Unlike the Spanish Constitu-tion of 1931, Article 50 of con-cerned the use of official lan-guages in education, the present Constitution does not include similar article.

21 Article 27.3 of the Constitu-tion: “education shall have as its objective the full development of the human character compatible with respect for the democratic principles of coexistence and for the basic rights and freedoms”.

the government of Catalonia had some unconstitutional

provisions. The government of Catalonia appealed this

decision to the Supreme Court17 and after the Supreme

Court declined the ruling of the court in Barcelona and

the claimant launched an appeal “recurso de Amparo”,

the Supreme Court referred the case to the Constitu-

tional Court of Spain on the basis of unconstitutional-

ity, “cuestión de inconstitucionalidad”18. It asked the

Constitutional Court to deal with the constitutionality of

several articles from “Law 7/1983”19.

The Constitutional Court, after examining the consti-

tutionality of those articles, on December 1994, gave

response to two matters: a) Spanish people living in

the Catalonia had to speak Catalan as well as Span-

ish and b) the Constitution did not grant any the right

to choose the language of instruction among the of-

ficial languages inside the autonomous communities.

The court said that the only linguistic requirements put

forward in the CE referred to the fact that the language

of instruction had to be comprehensible20 so the pupil

was not excluded from the ultimate aim of the right to

education21.

Likewise, the Constitutional Court concluded that the

CE [write out in full] did not guarantee a right to be

taught in one’s own language because such right would

be attached to the person. If such a right were guaran-

teed, it would have to be guaranteed in all instances

(everywhere and for everyone). Furthermore, this right

would have to be granted not only in territories in which

there were two co-official languages but also in mono-

lingual territories and not only to national but to foreign

citizens as well.


2.3 FINAL REMARKS

Finally, “Law 7/1983” was not found to be unconstitu-

tional, but “Decree 362/1983” was eventually amended

by “Decree 576/1983” and this latest norm stated that

from the second year of primary school onwards at

least two subjects were to be taught in Spanish22. The

conflict of education and the use of languages however,

remains an issue23.

It can be claimed that national courts are sometimes

too involved in the real political life of their given coun-

tries, and are thus excessively influenced by the actual

consequences of their decisions. In the case above,

ruling the case in favour of the parents wishing to have

their children taught only in Spanish would have likely

led to major restructuring of the educational system of

the country. However, the European Court of Human

Rights (ECtHR) can be seen as being free from this sort

of restriction, basing its decisions solely to the grounds

of human rights24. This is why this paper wants to take

a step forward to study the possibility of a Spanish-

speaking person bringing the same case before the Eu-

ropean Court of Human Rights25. The key issue here,

which will be analysed in the following pages, is wheth-

er the Right to education, Protocol 1126 of the European

Convention on Human Rights (ECHR) also covers lin-

guistic rights27.

22 Milian i Massana, Antoni, Drets lingüístics i dret fonamental a l’educació. Un estudi comparat: Itàlia, Bèlgica, Suïssa, el Canadà i Espanya, Institut d’Estudis Autonòmics, Generalitat de Catalunya, Barcelona, 1992, pp. 329-354.

23 See for example, EFE, “Ra-joy acusa al PSOE de impeder a la gente educar a sus hijos en el idioma elegido”, LA VANGUARDIA, February, 2008. Link: http://www.lavanguardia.es/lv24h/20080219/53437667005.html (last visit 10/2008).

24 Even though sometimes, the objec-tiveness of this Court is not as pure as one might wish. See, e.g. Voeten, Erik, The politics of International Judicial appointments: evidence from the Euro-pean Court of Human Rights (Septem-ber 2007) Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=939062 (last visit 09/2008). Observe also what Judge Martens said in his dissenting opinion in the Borgers case (Case of Borgers v. Belgium “application n°12005/86”. Judgment of the European Court of Human Rights of 30 October 1991, p. 27). He claimed that the Court acts with prudence taking care not to in-terfere with the national decision without convincing justification.

25 Spain signed the Convention on 24 November 1977 and ratified it on 4 October 1979. Thus, within the follow-ing six months of the national ruling, the Spanish individual that claimed the un-constitutionality of “Decret 362/1983” could have brought the case to the European Permanent Court of Human Rights and it probably would have been admissible

26 Spain also ratified the First Protocol of the Convention and accepted the right to education without reservations on 2 November 1990 and ratified Pro-tocol 11 on 16 December 1996. For further information see: De Groof, Jan, No person shall be denied the right to education. The influence of the Euro-pean Convention on Human Rights on the right to education and rights to education. Wolf Legal Publishers, Gra-cienne Lauwers (eds.), Netherlands, November 2004.

27 The European Court of Human Rights can only rule over aspects con-cerning breaches of the rights covered by the ECHR even though it has been said that it would be good for the Euro-pean Court of Human Rights to have a wider scope. See, for example, Nowak, Manfred, New challenges to the Inter-national Law of Human Rights, p. 1 Available at http://www.rwi.lu.se/pdf/seminar/nowak.pdf (last visit: 09/2008).

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3. THE INTERPRETATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

183. The interpretation of the european convention on human rights

3.1 INTRODUCTION

The European Convention on Human Rights (ECHR) en-

joys a “sui generis” nature28. The law of the Convention

is neither domestic nor international law but a combina-

tion of both29 and its protection lies not only within the

Strasbourg System30 but involves also a whole network

of states party to the Convention31. The Convention is

based on the principles of solidarity and subsidiarity.

The former is of importance since when states become

part of the Convention, they undertake the obligation

to guarantee the rights protected under the Conven-

tion in their national legal systems. Furthermore, states

function as the collective guarantors of the Convention

and can file a complaint in the Strasbourg System un-

der former Article 2432 ECHR and, in this way, guard

against potential breaches committed by other Con-

tracting Parties. The latter, subsidiarity principle, comes

into play through the enforcement mechanism of the

Convention for the safeguarding of its rights and obli-

gations, which is subsidiary to the national courts33.

3.2 THE STRASBOURG SYSTEM

Before 1998 the Strasbourg System was divided be-

tween three organs: the European Commission of Hu-

man Rights “the Commission”, the European Court of

Human Rights “the Court” and the Committee of Min-

isters. These organs were responsible for “ensuring ob-

servance of the engagements undertaken by the High

Contracting Parties”34. But the system changed with

the adoption of Protocol 1135. The Court became per-

manent and the recognition of its jurisdiction became

mandatory for all the Contracting Parties. Individual ap-

plicants were given an unconditional and fully-fledged

28 For an in-depth analysis, see Drzemczewski, Andrew, “The sui generis nature of the European Convention on Human Rights”, International and Comparative Law Quarterly, vol. 29, 1980, pp. 54-63.

29 For an in-depth analysis, see Wildhaber, Luzius, “The European Convention on Human Rights and International Law”, International and Comparative Law Quarterly, vol. 56, April 2007, pp 217-232.

30 The Strasbourg system refers to the Court and the other institu-tions responsible for the protection of the ECHR. These organs are lo-cated in Strasbourg, France.

31 See, Ireland v. United Kingdom (application n°5310/71). Court’s judgment 18 January 1978, p. 82: “Unlike international treaties of classic kind, the Convention comprises more than mere re-ciprocal engagements between contracting States. It creates over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the preamble, benefit from a “collective enforcement”.

32 The present article that cor-responds the former Article 24 is now Article 33 ECHR “Any High Contracting party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High contracting Party”.

33 Wildhaber, Luzius, The Co-ordination of the protection of fundamental rights in Europe, Council of Europe, Geneva, 8 September 2005, p. 7. Available at: http://www.echr.coe.int/NR/rdonlyres/00798A1C-0E03-49D3-AB4E-774CC3838A8E/0/2005_CoordinationProtectionFundamentalFreedoms.pdf. (last visit 09/2008) See also Jacobs, Francis; White, Robin; Ovey, Claire, The European Convention on Human Rights, Ox-ford University Press, Oxford, 2002 4th ed., p. 18.

34 Former Article 19 ECHR.

35 It is necessary, although, to un-derstand the system of protection before Protocol 11 entered into force because judgments of these prior organs will be constantly referred to in this paper. The de-cisions taken by the prior organs still have an effect on how to inter-pret and apply the Convention.

19

36 Vienna Convention on the Law of Treaties. Done in Vienna on 23 May 1969. Entered into force on 27 January 1980 United Nations (UN), Available at: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (last visit 114/08/2007).

37 Belilos v. Switzerland (applica-tion n° 1032/83). Referred to as the “Belilos case”. Court’s judg-ment 29 April 1988. In this case, the Court interpreted the nature of a reservation within the mean-ing of Article 2.1(d) of the Vienna Convention, p. 16, para. 42.

38 Bankovich, Stojadinovic, Stoimenovski, Joksimovic and Sukovic v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom (application n° 52207/99) referred to as the “Bankovich case”. Grand Cham-ber’s decision 12 December 2001 as to the admissibility of the application. (para. 55) “The Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention 1969”.

39 Sydney Elmer Golder v. United Kingdom (application 4451/70) referred as the Golder case, p. 24, para. 44 “The Com-mission considers that the case requires a brief examination as to what principles of interpretation are applicable to the European Convention on Human Rights (...) The Commission observes that the rather general provi-sions of the Vienna articles could be regarded as an expression of customary law and general prin-ciples recognised by nations in-cluding the contracting parties to the European Convention”.

“locus standi” before the Court to issue complaints un-

der Article 34. From the year 1998 onwards, the Per-

manent Court was responsible for declaring whether an

application made under Articles 34 and 35 of the ECHR

was admissible, for settling the dispute amicably if pos-

sible (Article 38.1), and adopting a final judgment. The

responsibility for the supervision and the execution of

the judgments (Article 46.2 of the Convention) was left

to the Committee of Ministers. The Strasbourg bodies,

i.e. the former Commission, the Court, the Committee

of Ministers and the current Permanent Court contrib-

ute to the content of the rights protected by the Europe-

an Court of Human Rights. The meaning of a provision

always carries a certain amount of subjectivity. Thus, it

is important to analyse the rules of interpretation used

in Strasbourg to gain thorough understanding on the

content of the right to education.

VIENNA CONVENTION ON THE LAW OF TREATIES

The rules of interpretation established in the Vienna

Convention on the Law of treaties 196936 applies to

the ECHR. From Article 5 of the Vienna Convention it

follows that the Convention applies to any treaty that

constitutes an international organization or to any trea-

ty adopted within the international organization, and

therefore also to the ECHR. The court emphasised this

in the Belilos case37 and the Bankovich case38. Further-

more, in 1973 when the Vienna Convention had not

entered into force yet, the Commission concluded that

the Vienna Convention could be seen as customary law

and as general principles of International Law accepted

by the Contracting Parties39. The interpretative mecha-

nisms that the Vienna Convention sets can be divided

into few main approaches which are listed with their

characteristics below.


Theological approach: “in the light of its object and

purpose”

The Convention is not an instrument composed by a

series of mutual obligations between States but an in-

strument that reflects a compromise among the Con-

tracting Parties for the protection and the promotion of

respect for Human Rights40. In this sense, a right should

not be considered as an isolated obligation but as a part

of a bigger entity. A provision should not be restrictively

interpreted taking into account only the words of a par-

ticular provision. The Convention has to be interpreted

as a whole41 and in a way that the aim of the Convention

is best protected. Likewise, the Convention should not

be interpreted restrictively on the basis that the princi-

ple of State’s sovereignty is invoked. The Convention is

more than merely mutual obligations between states.

In the Golder case42 it was stated that the object and

purpose of the Convention ought to be achieved, and

the provisions should not be interpreted restrictively,

which might prevent the object of the Convention from

being fulfilled. In the Wemhoff case43, the court said

that it was necessary to look for the most suitable in-

terpretation to achieve the aim of the Convention: the

protection of individual rights. Likewise, in the Kjeldsen,

Busk Madsen and Pedersen case44 the maintenance

and promotion of the ideals and values of a democratic

society was to be taken into account when interpreting

the Convention.

Furthermore, the Convention has to be read as a whole

even though a provision does not expressly recognise a

specific right, because it does not mean that such right

could not be derived from the text of the Convention.

For instance, in Kjeldsen, Busk Madsen and Pedersen

case, the Court recognised the freedom to provide pri-

40 Ireland v. United Kingdom, note 31 above.

41 Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium (merits) (Ap-plication no 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64) referred as the “Belgian Linguistic case”. Court’s judg-ment 23 July 1968, p. 27: “(...) while the provisions of the Con-vention and Protocol must be read as a whole (...).

42 Golder case, note 39 above, p. 31, para. 57: “(...) not to lay down (...) obligations which are to be restrictively interpreted having regard to the sovereignty of the States”.

43 Wemhoff v. Germany (Ap-plication no 2122/64) referred as “Wemholff case”. Court’s judgment 27 June 1968, p. 19, para. 8 “(...) given that it is a law-making treaty, it is also necessary to seek the interpretation that is most appropriate in order to rea-lise the aim and achieve the ob-ject of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties”.

44 Kjeldsen, Busk Madsen and Pedersen v. Denmark (application no. 5095/71; 5920/72; 5926/72) referred as “the Kjeldsen, Busk Madsen and Pedersen case”. Court’s Judgment 7 December 1976, on p. 21, para. 50. The Court, referring to the Conven-tion noted that “such an interpre-tation is consistent (...) with the general spirit of the Convention itself, an instrument designed to maintain and promote the ide-als and values of a democratic society”.

21

vate education, even though it was not expressly set

forth in the formulation of the Article 2 of the First Proto-

col ECHR. The court claimed that such a purpose had

been on the mind of the drafters when drafting the Con-

vention, and hence, such a right had to be considered

as safeguarded under this Article 2 of the First Protocol

ECHR.45

Evolutive interpretation

The interpretation of the Convention ought to be done

in the light of its changing nature. In the Tyrer case46,

when considering whether the judicial corporal punish-

ment was consistent with Article 3 of the ECHR, the

Court took into consideration the current standards

accepted by the European society and not the ones

prevalent when adopting the Convention47.

Furthermore, even when there is some but not to-

tal agreement between the Contracting States of the

Council of Europe and the defendant state about the

meaning of a new standard, the Court has also taken

an evolutive interpretation of the Convention. For in-

stance, in the Marckx case48, the Court adopted a new

approach to the status of children born out of wedlock.

This new conception was accepted in the laws of the

majority of Member States of the Council of Europe,

even though it was not accepted by all the states.

The Court does not make drastic evolutive interpreta-

tions nor does it recognise new rights out of the Con-

vention which were never intended to be included. For

instance, the Court has never recognised a right to di-

vorce under Article 3 of the Convention49. However, this

does not mean that the Court cannot judge in favour of

some particular rights that might not have been agreed

at the outset. The common changing practice of States

45 Van Dijk, Van Hoof, Theory and Practice of the European Convention on Human Rights, Netherlands, 1990, 2nd ed., this idea is set out on p. 470.

46 Tyrer v. the United Kingdom (Application no. 5856/72) Court’s judgment 25 April 1978.

47 Ibid. in para. 31. “The Court must also recall that the Con-vention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day condi-tions”. See also Marckx v. Bel-gium (application n°6833/74) referred as the “Marckx case”. Court’s judgment 13 June 1979, p. 22, para. 58 “(...) the European Convention of Human Rights in-terprets the Convention on the light of present-day conditions (...)”.

48 Ibid.

49 Johnston and others v. Ire-land (application n°9697/82) re-ferred to as the “Johnston case” Court’s Judgment 18 December 1986.


and the adoption of new legislation by the European

States have led the Court taking an evolutive approach

to interpretation.

The evolutive approach has occasionally led the Court

to depart from its previous judgements. For instance, in

the Cossey case50, several dissenting opinions pointed

out the need to depart from the former ruling of the

Court in the Rees case. Judges MacDonald and Spiel-

mann, in their dissenting opinions, noted that “since

1986 there have been, in the law of many of the member

States of the Council of Europe, not “certain develop-

ment” but clear developments”51 thus, the Court should

have followed a different approach than in the earlier

case. Furthermore, in the Borgers case52 the Court de-

parted from its ruling of the Delcourt case53, taking into

account the considerable evolution of the laws regard-

ing Article 6 of the Convention.

Interpretation in accordance with International, Eu-

ropean and National Law

If it is accepted that the Convention is indeed self-evi-

dently part of public international law and that it has to

be interpreted in harmony with the Vienna Convention

of the Law of Treaties, then the Convention should also

be interpreted in accordance with other rules of interna-

tional law and European Law.54

There is a close relationship between the ECHR and

other international norms for the protection of human

rights. Since the intention of the Contracting Parties to

the Convention is to safeguard individual rights, these

international norms and Covenants should be taken

into consideration when interpreting the Convention. As

a result, new commitments made by the Contracting

States have been seen by the Court as new guidelines

50 Cossey v. the United King-dom (application no. 10843/84) referred as the “Cossey case”. Court’s judgment of 27 Septem-ber 1990.

51 Rees v. United Kingdom (ap-plication n°9532/81) referred as the “Rees case”. Court’s judg-ment of 17 October 1986. See dissenting opinions p. 17.

52 Borgers case note 24 above, Court’s judgment of 30 October 1991. In this case, unlike the Del-court case, the Court stated that there had been a violation of Ar-ticle 6 para. 1 of the Convention. The Court overruled the Decourt judgment. See pp. 8-9, para. 24: “The Court notes in the first place that the findings in the Delcourt judgment on the question of the independence and impartiality of the Court of Cassation and its procureur général’s department remain entirely valid (...) However (...)This has undergone a consid-erable evolution in the Court’s case-law, notably in respect of the importance attached to ap-pearances and to the increased sensitivity of the public to the fair administration of justice”.

53 Delcourt v. Belgium (applica-tion no. 2689/65) referred as the “Delcourt case”. Court’s judg-ment of 17 January 1970. the Court held that there had been no breach of article 6.1 of the Convention.

54 Ireland case, note 31 above, on p. 54, para. 54: “The Court’s judgments in fact serves not only to decide those cases brought before the Court but, more gen-erally, to elucidate, safeguard and develop the rules instituted by the convention thereby con-tributing to the observance by the States of the engagements undertaken by them as Contract-ing Parties (Article 19)”.

23

for interpreting the Convention. For instance, in Al Ad-

sani case the Court noted the growing recognition on

the overriding importance of the prohibition of torture

when ruling the case55.

Likewise, as pointed out by the former Judge Van der

Meersh56, the Convention is also closely related to the

national laws of the European states. The Convention

has been somewhat inspired by the national law of the

European states. Thus, national law should be used

to interpret the ordinary meanings of particular words

or expressions that might be found in the Convention.

When interpreting the ECHR, the common law of the

Member States of the Council of Europe may legitimate-

ly be taken into account as an orientating criterion 57.

Interpretation relying on the “travaux préparatoires”

of the ECHR

As drawn from Article 32 ECHR, the Court can rely on

the “travaux préparatoires”58 when interpreting the Con-

vention. The bodies of Strasbourg have also done so

in several occasions59. Nevertheless, the Court should

be cautious when using the “travaux préparatoires”. As

stated in this Chapter, the Convention is not a treaty

that sets mutual obligations among the Contracting

Parties but an instrument for the protection of human

rights in Europe.

When interpreting the Convention, the Court should not

limit itself to the meaning of the articles as they have

been written in the “travaux préparatoires” but take into

consideration the evolutive nature of the Convention

and the meaning of its rights. Recourse to the “travaux

préparatoires” is not always compatible with a dynamic

and evolutive interpretation and between these two cri-

teria the first one prevails. It is preferable to rely to the

55 Case of Al Adsani v. the United Kingdom (Application no. 35763/97) referred as the “Al Adsani case” Judgment of 21 November 2001, p. 6, para. 63 & 66. Even though the Court does not find firm basis on which to conclude that the immunity of States ratione personae is no longer enjoyed, the Court notes the importance of the prohibi-tion of torture. See also Golder Case, note 39 above, p. 33 and also Loizidou v. Turkey (applica-tion no. 15318/89).Court’s judg-ment 18 December 1996, p. 13, para. 43.

56 Harris, DJ, Law of the Europe-an Convention on Human Rights, Butterworths, London, 1995 p. 9

57 Ibid, p. 9. However, Judge Van de Meersch has also pointed out “the paradox of taking standards in national law into account when interpreting an international trea-ty shows that its purpose is to control national law”.

58 Preparatory Work of the Eu-ropean Convention on Human Rights

59 See, amongst many others, Kjeldsen, Busk Madsen and Ped-ersen case, note 44 above, p. 21. Golder Case, note 39 above, p. 33 and Grace Campbell and Jane Cosans v. United Kingdom (application n°7511/76 & 773/76) referred as Campbell and Cosans case. Report of the Commission of 16 May 1980, p. 17.


current European standards rather than particular notes

that might have been written when drafting the ECHR

more than 50 years ago. As noted in Young, James and

Webster case the Court has been aware of the limita-

tions related to relying on “travaux préparatoires”60. The

Court said that the “travaux préparatoires” were not de-

cisive for the interpretation of a particular provision but

provided a merely possible hypothesis. Furthermore, in

the Lawless Case61, the Court declined to resort to the

“travaux préparatoires” to interpret a provision.

3.3 CONCLUSIONS

The rules of interpretation followed by the Court are

important in order to define the real meaning of a par-

ticular provision covered by the Convention. The mean-

ing of a particular provision is open to interpretation

and somewhat dependent on the eyes of the beholder.

Provisions are not always black and white. Thus, use of

rules of interpretation set out in this Chapter, namely the

theological approach, the evolutive approach, the reli-

ance upon international, European or national law, will

be used when studying Article 2 of the First Protocol

ECHR in the following chapter. To find out if the “Span-

ish Case” could be accepted by the Court, the content

of Article 2 of the First Protocol ECHR will be studied by

emphasising the question on whether it takes into ac-

count linguistic rights.

60 Young, James and Webster v. the United Kingdom (Application n°. 7601/76; 7806/77). Referred as “Young, James and Webster case”. Court’s judgment of 13 August 1981, p. 24 ““The travaux préparatoires” of the Convention -which anyway are not conclu-sive - speak only (...)”.

61 Gerard Lawless against the Republic of Ireland (Application n°332/57) referred as “Lawless case”. Report of the Commis-sion of 19 December 1959, p. 84, para. 90 “(...) when the text of a treaty is clear, there is no occa-sion to have recourse to the pre-paratory work (...)”.

25

26

27

4. THE RIGHT TO EDUCATION UNDER THE ECHR

284. The right to education under the echr

The content of the right of education, Article 2 of the First

Protocol of the Convention can be divided in two parts.

The first one is “no person shall be denied the right to ed-

ucation” and the second one “in the exercise of any func-

tions which it assumes in relation to education and teach-

ing, the State shall respect the right of parents to ensure

such education and teaching in conformity with their own

religious and philosophical convictions”. These two parts

will be analysed differently in the following chapter with

constant references to the Belgian Linguistic case62.

4.1 “NO PERSON SHALL BE DENIED THE RIGHT TO EDUCATION”

“NO PERSON SHALL BE DENIED (...)”

The ECHR applies to everyone within the jurisdiction of

any state party to the Convention63. Furthermore, even

though the right to education is not included in the Sec-

tion I of the Convention, everyone within the jurisdiction

of a Contracting Party may benefit from the right of edu-

cation covered by Article 2 of the First Protocol of the

Convention: Article 1 covers not only the Articles of the

main text but also its Protocols64.

The wording of Article 1 of the Convention does not pose

any limitation concerning nationalities65. In addition, it

does not limit the right of anyone living in the territory of

one of the Member States. When drafting the Convention,

the Consultative Assembly proposed that Article 1 could

be worded as “(...) all persons residing within the territories

of the signatory States (...)”. However, the Committee of

Experts changed the proposition66 and eventually worded

Article 1 ECHR as it can be read now. The aim was to

include all the persons. Thus, immigrant workers67, refu-

62 The Belgian Linguistic case, note 41 above, raised questions over the meaning and scope of the right to education.

63 Article 1 of the Convention states: “Contracting States are bound to secure to everyone within their jurisdiction the rights and freedoms set forth in the Section I of the Convention”.

64 Article 5 of the First Protocol says that “the provisions of Arti-cles 1, 2, 3 and 4 of this Protocol shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly”.

65 See, e.g., Schwelb, Egon, “On the operation of the European Convention on Human Rights”, International Organization, vol. 18, 3, 1964, pp. 558-585, p. 563.

66 Bankovich case, note 38 above, p. 6, para. 19.

67 Gaygusuz v. Austria (appli-cation n°17371/96) referred as “Gaygusuz case” Court’s judg-ment 16/09/1996, in para. 46-52. The Court ruled that the refusal of the authorities to grant a Turk-ish national emergency assis-tance on the solely fact that he did not have Austrian national-ity breached Article 14 of the Convention in conjunction with Article 1 First Protocol (the non-discrimination principle).

29

gees, asylum seekers and foreigners who, although

are not legally residing in a particular country, seem

to be covered by the ECHR68.

The first part of the article differs from many other

international treaties because the right to educa-

tion is formulated in a negative way69. There were

several attempts to include such right in a positive

form: in 1950, an attempt was made by the Gen-

eral Assembly of the Council of Europe70 and on 19

February 1951, another attempt was made by the

Belgian delegation to the Committee of Experts71.

However, the Contracting Parties were not able to

reach an agreement on a positive formulation. A

positive formulation of the right might have implied

obligations for the states and states did not want

to assume them72.

In the proposed text of the Committee of Minis-

ters in August 1951, in the proposed text of the

Committee of Ministers in November 1951, and in

the proposed text of the Assembly in December

1951 the positive formulation was left aside73. A

negative formulation of the right was eventually

adopted. With this negative form, how the right

had to be implemented fell within the discretion of

each state74.

68 De Groof, note 26 above, at. p. 31.

69 Other treaties are formulated in a posi-tive way. See, e.g., Article 26 of the Universal Declaration of Human Rights states that “ev-erybody has the right to education (...)”, Article 13 of the International Covenant on Economic, Social and Cultural Rights “the States Parties to the present Covenant recognize the right of everyone to education”, and the Convention on the rights of the Child says that “States Par-ties recognize the right of the child to educa-tion (...)”. For further international agreements on education, see Fernandez, Alfred & Jen-ker, Siegfried, “International Declarations and Conventions on the Right to Education and the Freedom of Education”, European Forum for Freedom in Education (E/F/F/E) vol. 8, Geneva & Hanover, 1995.

70 Council of Europe, Collected Edition of the “Travaux préparatoires” of the European Con-vention on Human Rights VIII , Martinus Njhoff Publishers, Dordrecht, 1985, p. 186. The word-ing was the following: “Every person has the right to education. The function assumed by the State in respect of education and of teaching may not encroach upon the right of parents to ensure the religious and moral education and teaching of their children in conformity with their own religious and philosophical convictions”.

71 Council of Europe, Collected Edition of the “Travaux préparatoires” of the European Con-vention on Human Rights vol. VII, Martinus Njhoff Publishers, Dordrecht, 1985, p. 192. The wording was the following: “Every person has the right to education. Parents have the right to ensure the religious (...)”

72 In the Belgium case, note 41 above, the government of Belgium underlined the fact that the Member States had expressly de-clared that they did not intend to oblige them-selves to do so when ratifying Article 2 of the First Protocol of the Convention. The Belgian government supported those arguments by making reference to the fact that, a) the Gener-al Assembly of the Council of Europe in August 1950 worded the right in a positive manner but due to the Contracting Parties objections it was eventually changed to a negative form, b) the “travaux préparatoires” of the Convention confirms very clearly the conclusions drawn from the text itself, c) the Netherlands made declarations on 20 March 1952 and the Fed-eral Republic of Germany on 13 February 1957 pointing towards the same direction. Belgian Linguistic case, note 41 above. See argument given by the Belgian government, p. 17.

73 Council of Europe, note 70 above, p. 186. See comparative table of the four texts pro-posed between August 1950 and December 1951, p. 186.

74 As the Court said in Belgian Linguistic case, note 41 above, p. 28 “(...) by its very nature calls for regulation by the State, regulation (… )It “may vary in time and place according to the needs and resources of the community and of individuals”.


“(...) THE RIGHT TO EDUCATION”

On one hand, the right to education means that every-

body, without discrimination, has to be able to access75

to education (which does not mean that the State has

to refrain from setting limitations). On the other hand,

the right to education means a right to an effective ed-

ucation and the right to draw profit from education76. In

the Belgian Linguistics Case, as in the Kjeldsen, Busk

Madsen and Pedersen case77, the Commission stated

that the concept of effectiveness referred to the right

of having one’s studies officially recognised78 and in

the case of S.P. v. United Kingdom79 the Commission

did not analyse how much profit the child had drawn

from his education. The Commission understood that if

a child had his or her studies recognised the education

was effective and the right was not breached.

4.2 “(…) EDUCATION AND TEACHING IN CONFORMITY WITH THEIR OWN RELIGIONS AND PHILOSOPHICAL CONVICTIONS”

When drafting the second paragraph, the drafters wan-

ted to make sure that schools could not be used as

tools for indoctrination or that the right of education

was not used to instil particular creeds or convictions,

as has been the case in some totalitarian regimes in

Europe80. For the preservation of democratic societies,

it was essential that pluralism in education was respec-

ted and this particular issue was taken into account in

this second paragraph. The second paragraph deals

with the rights of parents to have certain aspects of

their identity respected within the right of education.

75 As the Court said in Belgian Linguistic case, note 41 above, p. 29 “The first judgement of Article 2 of the Protocol (P1-2) consequently guarantees, in the first place, a right of access to educational institutions existing at a given time, but such access constitutes only a part of the right to education (...)”

76 For an in-depth discussion, see, amongst many others, Council of Europe: Digest of Strasbourg Case-Law relating to the European Convention on Human Rights vol. 5, Carl Hey-manns, Berlin, 1985, p. 776.

77 Kjeldsen, Busk Madsen and Pedersen case, note 44 above.

78 “For the ‘right to education’ to be effective, it is further neces-sary that, inter alia, the individual who is the beneficiary should be able to profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed (...)”. Belgian Linguistic case, note 41 above, p. 28.

79 S.P. v. the United Kingdom (application n°28915/95). Euro-pean Commission Decision of 17 January 1997. A mother of a child with learning disabilities claimed a breach of his right to education since her son was un-able to benefit from his educa-tion because of his disabilities. However, the Commission was unable to define the level of inef-ficiency that constitutes a breach of the right to education.

80 Council of Europe, Collected Edition of the “Travaux Prépara-toires” of the European Conven-tion on Human Rights vol. III, Martinus Njhoff Publishers, the Netherlands, 1976, p. 262 “It was felt that the totalitarian re-gimes had a tendency to interfere with the right to own property as a means of legitimate pressure, and to have a detrimental effect on the education of children by depriving them of the direct influ-ence of their parents”.

31

The text that the Assembly proposed in August 1950

took into account that teaching had to be in conformity

with the religious and philosophical convictions of the

parents. In the text of the Committee of Ministers, in

August 1951, it was ensured that religious education of

their children had to be in conformity with parents’ cre-

eds81 and eventually the second paragraph on the right

to education was drafted in its current form “(…) teac-

hing in conformity with (…) religious and philosophical

convictions”. The proposal of the Danish representati-

on to also consider linguistic preferences as aspects to

protect was not eventually taken into account82.

“(...) TEACHING IN CONFORMITY WITH RELIGIOUS

(...) CONVICTIONS”

When defining the meaning of the phrase “in confor-

mity with religious convictions” in the Kjeldsen, Busk

Madsen and Pedersen case83, the Court rejected the

claim of the Danish by which it was stated that this se-

cond paragraph meant only a right of parents to have

their children exempted from classes offering religious

instruction different from theirs. The Court claimed that

the protection covered under this provision was wider.

However, it denied the right of the parents to oppose

compulsory sex education within a particular state.

The Court took into consideration that this second ph-

rase aims to avoid indoctrination. It claimed that a child

might be exempted from religious class or any other

class that might offend his religious or philosophical

convictions. But, the fact of instructing something dif-

ferent to what is thought by parents does not necessary

affect the rights of the parents to advise and guide their

children in the line with their convictions. Likewise, the

Court, in the Campbell and Cosans case, stated that

81 Council of Europe, note 70 above, p. 186

82 Council of Europe, note 71 above, p. 246 “Parents or oth-ers in charge of the education of children shall have the right to decide freely that children in their charge shall attend recognised schools with another teaching language than the language of the country in question”.

83 Kjeldsen, Busk Madsen and Pedersen case, note 44 above


“the term “belief” (…) denotes views that attain a cer-

tain level of cogency, seriousness and importance”84.

“(...) TEACHING IN CONFORMITY WITH (...) PHILO-

SOPHICAL CONVICTIONS”

In the case of Campell and Cosans the meaning of

philosophical convictions was extended from the one

provided in the “travaux préparatoires”. The applicants

claimed that the parents’ objection to corporal punish-

ment in the school amounted to a philosophical con-

victions and the Court agreed. Even though there was

a dissenting opinion from the British Judge Sir Vincent

Evans who claimed that “the views of parents on such

matters as the use of corporal punishment are as much

outside the intended scope of the provision as are their

linguistic preferences, the Court took an extensive in-

terpretation of the meaning of “Philosophical Convicti-

ons”85 . It could be claimed that the meaning of philo-

sophical convictions also covers the right of parents to

object to education given in a language that would not

be in accordance with the linguistic preferences of the

parents. The claimants in the Belgian Linguistic case

claimed this. They alleged that linguistic preferences

were covered by the concept of “philosophical convic-

tions”.86

However, both the Belgian government and the Court

rejected such a possibility. According to the Belgian

government, “Philosophical Convictions” could not be

extended to cover linguistic preferences and it based

its argument on the following facts: a) originally, the

draft of the Committee of Experts made a provision

only for the protection of religious opinions, and there-

fore philosophical opinions were added but only to co-

ver agnostic opinions; b) the Contracting Parties’ con-

84 Campbell and Cosans case, note 59 above. Court’s Judg-ment of 25 February 1982, p. 12-13, para. 36.

85 Ibid., p. 19.

86 (...) As regards to the “philo-sophical convictions” they in-clude the “personalist doctrine” which these applicants “pro-fess”; for the Applicants of (...) they necessarily include the cul-tural and linguistic preferences of parents” Belgian Linguistic case, note 41 above, p. 19.

33

cerns, they never thought about linguistic problems but

simply about ideological and denominational matters;

c) the suggestion of the Danish delegation over a right

of parents to send their children to recognised schools

were the language of instruction was not that of the

country in question was not supported by the majo-

rity, and thus, it was withdrawn; (d) the suggestion of

recognising linguistic rights made by the two members

of the Consultative Assembly was never adopted87.

On the other hand, the Court claimed that the second

paragraph of Article 2 of the First Protocol ECHR was

directly concerned with the protection of students’

right to freedom of thought in schools and protection

against possible indoctrination. The intention of the

drafters of the Convention was to safeguard the possi-

bility of pluralism in education and the preservation of a

democratic society, but not to include language rights

on the grounds of education per se. The Court claimed

that no references to cultural or linguistic matters were

made in this second paragraph of Article 2 of the First

Protocol ECHR and consequently no languages rights

could have been deduced from the provision.

4.3 NO LINGUISTIC RIGHTS INCLUDED IN THE RIGHT TO EDUCATION

As seen from the preceding rulings regarding the

ECHR, Article 2 of the First Protocol ECHR does not lay

down any obligations regarding the language in which

the right to education should be implemented. Differing

from other rights covered in the convention such as the

ones in Article 5 and Article 6 (“a” and “b”)88 there is no

reference to linguistic rights regarding the right of edu-

cation. Furthermore, states did not have any intention

87 Ibid., note 41 above, p. 19-20

88 Article 5.2 of ECHR establish-es that “everyone who is arrest-ed shall be informed promptly, in a language which he under-stands”. Article 6.3 (a & e) claims that “everyone charged with a criminal offence has (...) (a) to be informed promptly, in a language which he understands (…) (e) to have the free assistance (...) if he cannot understand or speak the language”.


to include them. Objections against being taught in a

particular language cannot be raised by claiming that

it goes against religion or philosophical convictions.

Neither of the two covers linguistic preferences. Besi-

des, even though the meaning of those concepts can

be expanded in future, as seen in the Campbell and

Cosans case89, the possibility of the Court recognising

linguistic preferences under the concept of “philosop-

hical convictions” is slim.

If using a language in a school aims to affect the per-

sonality of a pupil or intimidate him, regardless of the

content of the message, the Court may accept lin-

guistic preferences as being covered by the notion of

“philosophical convictions”. If the dignity of a person

is deeply affected by the simple fact of being taught

by a non-usual language, the Court might as well go

along with it. However, it is difficult to see how the use

of a language, as an instrument of instruction, can de-

eply affect and damage someone’s dignity. It might be

different if pupils are forbidden to talk in their own lan-

guage, or if the usual language of the pupil is disdai-

ned in the schools. Also the case would be different if

schools force pupils to talk the language by which they

are being instructed with. Maybe in these examples a

pupil might see his or her personality deeply damaged

and linguistic preferences might be considered to be

covered by the notion of “philosophical convictions”.

Nevertheless, through the simple fact of being taught

in a language which is not pupil’s mother language, this

cannot be rationally expected.

In the Belgian Linguistic case, the Court denied the

existence of a right to be taught in one’s own langua-

ge under the European Convention90. If the “Spanish

Case”, introduced in the first chapter, were brought be-

89 After this case, the meaning of philosophical conviction in-cluded corporal punishment.

90 (…) if they had intended to create for everyone within their jurisdiction a specific right with respect to the language of in-struction, they would have done so in express terms in Article 2 of the Protocol (P1-2)” Belgian Linguistic case, note 41 above, p. 32.

35

fore the ECtHR, the ruling would probably be the same.

Even though the Court has differed from previous de-

cisions in many cases91, there have been different ap-

plications claiming language rights92 under Article 2 of

the First Protocol of the Convention and even those

have not been admitted. It would be different would if

a Spanish-speaking child living in Catalonia could not

understand Catalan. Pupils have to be taught in a lan-

guage that they understand93. However, in the case set

out in Chapter I, the claimant did not raise the issue

of not understanding Catalan. Therefore, the Court in

Strasbourg would probably not depart from the Spa-

nish Court’s judgement in 1968. The purpose of edu-

cation is the full development of the person and, as far

as the language of instruction is comprehensive, this

aim can be achieved.

91 See Chapter 3, the section entitled “evolutive interpretation”. Also see Defrenne v.. Sabena, Reports 1976, p. 480 (April 1976) “The practical consequences of any judicial decision must be carefully taken into account”, but “it would be impossible to go so far as to diminish the objectivity of the law and compromise its future application on the grounds of the possible repercussions which might result, as regards the past, from such a judicial decision”.

92 For in depth analysis, see Spiliopoulou Akermark, Atha-nasia, Justifications of minority protection in international law, Giustus Förlag, 1997, p. 207. It makes reference to application No. 2924/66, Roger Van den Berghe against Belgium, and ap-plication No. 4372/70 X. against Belgium in which a Greek immi-grant in Belgium claimed a right to choose French education for his children.

93 In the Belgian Linguistic case, the Commission took into ac-count that the claimants’ chil-dren understood the language of instruction. Belgian Linguistic case, note 41 above, p. 36-37 “it is difficult to imagine that people living permanently in the region will be totally ignorant of its lan-guage” (....)“it may no doubt hap-pen that children may encounter serious difficulty in learning Dutch and that their parents may be to-tally ignorant of the language” but the Applicants have not cited ‘any case of this kind’”.

36

37

5. THE RIGHT TO EDUCATION AND THE PRINCIPLE OF NON-DISCRIMINATION

385. The right to education and the principle of non-discrimination

5.1 THE CONVENTION AS A WHOLE

To find out if the ECHR grants linguistic rights in educa-

tion, Article 2 of the First Protocol cannot be interpreted

in isolation from the rest of the Convention. The right

of education has to be read together with other articles

of the ECHR. As stated in Belgian Linguistic case, the

ECHR has to be read as a whole94. There has been

different cases within the field of education in which

breaches of Article 2 of the First Protocol have been

alleged together with other articles of the Convention95.

Thus, if we go back to the “Spanish Case”, one might

argue that the fact that there are children in Spain re-

ceiving their whole education in Spanish, while not all

of them do, is discriminatory. Article 14 ECHR prohibits

discrimination on the grounds of various reasons96, in-

cluding language97.

5.2 THE NATURE OF ARTICLE 14 ECHR: NON-DISCRIMINATORY TREATMENT

This article should be applied in connection with ot-

her rights. However, this does not mean that Article 14

ECHR lacks autonomy, as might be stated98. This ar-

ticle has autonomy of its own99 and, as the European

Commission on Human Rights stated in its opinion of

24 June 1965, Article 14 is not limited to cases in which

there is an accompanying violation of another article of

the Convention100. Article 14 ECHR enhances the rights

covered by the Convention and it has been of substan-

tive importance in different cases. In the Abdulaziz, Ca-

bales and Balkandali case, for instance, the Court did

not find a breach of any specific right of family life101,

but it did find it when it took into consideration Article

14 ECHR102.

94 See Chapter 3 above, “Rules of interpretation”.

95 See, amongst many others, Hornsby v. Greece (application n°18357/91). Court’s Judg-ment 19/03/1997. The Courts in Greece had for many years de-layed authorization for English teachers to open a language school. A breach of Article 6(1) was claimed jointly with Article 2 First Protocol ECHR.

96 It is accepted, although, that such circumstances or discrimi-nation constitutes an open-end-ed clause. The list is not exhaus-tive.

97 “The enjoyment of the rights and freedoms set forth in this 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 (Emphasis added by the author).

98 See, Harris, note 56 above, p. 463: “it is thus a parasitic provision and not a general pro-scription against every kind of discrimination”. See also, the Belgian Case, note 41 above, p. 22. “The Belgian government had submitted, before the Com-mission, that ‘a violation of Article 14 (Article 14) without simultane-ous violation of another Article of the Convention is legally impos-sible’; it based its argument on the words ‘rights and freedoms set forth in this Convention’ and on the decisions of the Commis-sion”

99 Black-Branch, Jonathan L., “Equality, non-discrimination and the right to special education; from international law to the Hu-man Rights Act”, European Hu-man Rights Law Review, 3, 3000, pp. 297-314, p. 308.

100 Belgian Linguistic case, note 41 above, p. 24

101 Article 8 ECHR

102 Abdulaziz, Cabales and Balkandali v. United Kingdom (application n°9214/80, 9473/81, 9474/ 81). Court’s judgment of 28 May 1985.

39

Furthermore, the principle of non-discrimination is also

established in Protocol 12 of the Convention103. The

protocol entered into force after 10 states ratified it104.

Participants to the 7th International Colloquy on the

ECHR held in Copenhagen, Oslo and Lund in 1990,

wanted to broaden the protection of the principle of

non-discrimination and agreed on this protocol, which

does not make references to the enjoyment of rights

and freedoms set forth in the Convention, making it so-

mething of a blank cheque.

Member States have been reluctant to ratify it105. They

somehow feared that more sovereignty would be gran-

ted to European institutions with this protocol106. Howe-

ver, Protocol 12 does not introduce any major changes

to the non-discriminatory principle of the Convention107.

The interpretation of the principle of non-discrimination

of Protocol 12 of the Convention given by the Court will

probably follow the same line as the one given to Arti-

cle 14 of the Convention108. The only difference would

be that a breach of the principle of non-discrimination

would not necessarily have to come hand-in-hand with

another article of the Convention.

Therefore, the result of the “Spanish case” might be dif-

ferent if we analyse it together with Article 14 or Proto-

col 12, even though Article 2 of the First Protocol does

not grant linguistic rights as such (see Chapter 3). As

stated in the Cyprus v. Turkey case109, a Greek-Cypriot-

speaking child, who had received early education in his

own language, had to be provided with such right in

secondary education since Turkish-speaking children

had it. Otherwise, it would have been discriminatory.

It has to be taken into account, however, that differen-

tiated treatment is not always discriminatory. Differenti-

103 This Protocol was opened for signature in Rome on 4 November 2000. It entered into force on 1 April 2005. See http://conventions.coe.int/Treaty/Commun/QueVoulez-Vous.asp?NT=177&CL=ENG

104 Ten states have ratified it, even though, on 26 April 2006, ten is still the total number of ratifications of the protocol. See: European Court of Human Rights website: http://www.echr.coe.int/ECHR/EN/Header/Basic+Texts/Basic+Texts/Dates+of+ratification+of+the+European+Convention+on+Human+Rights+and+Additional+Protocols/ Last update: 26/06/2006 (last visit 09/2008).

105 For an in-depth discussion, see Wintemute, Robert, “Filling the Article 14 “Gap”: Government Ratification and Judicial Control of Protocol No. 12 ECHR”, Euro-pean Human Rights Law Review, nº. 5, 2004 n°5, pp. 484-499.

106 The UK government has said that this Protocol “does not fol-low the case law of the ECtHR in allowing objective and reason-ably justified distinctions. Ibid. p. 487.

107 Ibid. p. 499.

108 There has not been any judgment regarding Protocol 12 because the 10 ratifications of this Protocol came into force on 1 April 2005. See note 135 above.

109 In Cyprus v. Turkey (ap-plication 25781/94). The Court claimed that there had been a violation of Article 2 Protocol 1 ECHR. Greek-Cyprot-speaking children living in the North of Cyprus had to move to the south if they wanted to continue sec-ondary education in Greek. On the other hand, Turkish-speaking children could continue educa-tion in Turkish in the north. Court’s judgment of 10 May 2001.


ated treatment among equal individuals is seen as dis-

criminatory only if it does not pursue a legitimate aim 110. Furthermore, the legitimate aim has to be relevant

to the aim pursued and the means employed have to

be in proportion to the pursued aim111.

THE DOCTRINE OF MARGIN OF APPRECIATION

The doctrine of margin of appreciation is not expressly

mentioned in the texts of the European Convention on

Human Rights but it stems from the relation between

domestic courts and the Strasbourg system. The Euro-

pean Court of Human Rights has a subsidiary role over

national courts112. The entity responsible for deciding

if an action is justified by a legitimate aim is the natio-

nal court and the European Court of Human Rights is

responsible, in all cases, to supervise the specific deci-

sion113. In Strasbourg the doctrine of margin of appre-

ciation has been used in several occasions114.

The organs of Strasbourg referred to the margin of

appreciation for the first time in 1959115, in the Lawless

case116 and have used it until recently. In the Mathieu-

Mohin and Clerfay case117, the court referred to the

margin of appreciation when it stated that the reasons

given in the national judgement concerning Article 3 of

Protocol made clear that there had been no discrimi-

natory treatment towards the applicants118. Likewise,

the Commission based its decision on the “margin of

appreciation” when refusing the admissibility of an ap-

plication concerning caravan sites of gypsies in the Uni-

ted Kingdom119. It did not accept application 14751/89

because it agreed with the national court that the deci-

sion of the British government pursued a legitimate aim

and respected the principle of proportionality.

110 National security, public safety, economic well-being of the country and public interest as well as the protection of specific individual or group rights under specific circum-stances are recognised as legiti-mate aims by the Court.

111 See, amongst many others, De Groof, Jan: “Education law as “trait d’Union” between national com-munities within the broad European Framework and within a national state”, European Journal for Edu-cation and Policy vol. 4, 2000, pp. 91-97, p. 94

112 See, e.g., Wildhaber, note 33 above, p. 7.

113 Case of Handyside v. the Unit-ed Kingdom (Application 5493/72). Referred as the “Handyside case” Court’s judgment of 7 December 1976, p. 18 para. 49: “The margin of appreciation goes hand in hand with the European Supervision”.

114 Notice as well that the doctrine of margin of appreciation has also its limits: See, for example, Chassa-gnou and others v. France (applica-tions nos. 25088/94, 28331/95 and 28443/95). Court’s judgment 9 April 1999, p. 32, para. 85. The Court agreed that the Loi Verdeille was undoubtedly in the general interest in preventing unregulated hunt-ing but, differing from the National Court, it considered that the burden it placed was disproportionate.

115 See Hutchinson, Michael R., “The margin of appreciation doctrine in the European Court of Human Rights”, International and Comparative Law Quarterly, vol. 48, 1999, p. 638-650, p. 639. He claims that it is commonly agreed, however, that the emergence of this doctrine dates from the Handyside v. the United Kingdom case.

116 Lawless case, note 61 above, p. 85 para. 90. The Commission established that “(...) it is evident that a certain discretion _a certain margin of appreciation_ must be left to the governments (...)”.

117 Mathieu-Mohin and Clerfayt v. Belgian case (application 9267/81) referred as the “Mathieu-Mohin and Clerfay case”. Court’s judgment of 2 March 1987.

118 Ibid., p. 20-21

119 P. v. the United Kingdom case (Application n°. 14751/89). Com-mission’s decision 12 December 1990.

41

5.3 THE “SPANISH CASE”: NEW PERSPECTIVE

Coming back to the “Spanish Case”, the differentia-

ted treatment between the Spanish people living in

Catalonia and the ones living outside Catalonia does

not seem discriminatory. The differentiated treatment

given to Spanish-speaking children living in Catalonia

and children living in another Autonomous Community,

such as Madrid, does pursue a legitimate aim: the pro-

tection and the revival of the Catalan language inside

Catalonia. Furthermore, the Spanish Constitutional

Court stated that the different uses of language in edu-

cation within Spain did not amount to discrimination

and the measures taken by the government of Catalo-

nia were proportionate to the aim pursued.

Therefore, if the claimant had brought the case to

Strasbourg within the six months120 and claimed the

existence of a right to be taught only in Spanish in

Catalonia, the case would have probably failed even

considering a breach of Article 2 of the First Protocol

together with Article 14. The European Court of Human

Rights follows the doctrine of margin of appreciation;

an overruling of the decision of the national court by

the Court in Strasbourg would have been unlikely.

POSITIVE DISCRIMINATION: SUBSTANTIVE EQUALITY

The principle of non-discrimination means something

else than merely treating people in the same manner.

The principle of non-discrimination requires affirmative

action when facing unequal situations. In other words

the principle of non-discrimination goes both ways, it

can also be infringed121 if a state fails to grant special

rights to people with disadvantages. Thus, if a diffe-

120 If an individual wants to bring a case to the European Perma-nent Court of Human Rights he has to fulfil several requirements. All the domestic remedies have to be exhausted and the case has to be brought before the ECtHR within six months of the national ruling. The claimant has to be identified and has to be a person, non-governmental organisation or a group of individuals claiming to be a victim of a violation of the Convention “ratione personae”, The claim should be substantially different from a previous one and it should be well-founded (…) This paper does not analyse those requirements, however, because they go beyond the aim that is pursued here. See amongst many others, Harris, D. J, note 56 above.

121 See, for example, Thlimme-nos v. Greece (GC) (application n°34369/97). Court’s judgment of 6 April 2000, p. 11, para. 44 “the right not to be discrimi-nated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objec-tive and reasonable justification fail to treat differently persons whose situations are significantly different”.


rent perspective of the “Spanish case” is taken, there

is room to argue for a possible breach of the principle

of non-discrimination on the grounds of education co-

vered by the Convention.

Spanish is the common official language of Spain. It

is the language spoken by the majority of Spanish ci-

tizens. Therefore, the fact of favouring a regional lan-

guage, Catalan, at the expense of Spanish does not

seem to breach the principle of non-discrimination.

It is justified that pupils in Madrid are instructed only

in Spanish while in Catalonia Catalan is also used as

a language of instruction. Positive discrimination and

affirmative action are necessary to remedy the histo-

rical discrimination of Catalan122. However, it would be

reasonable to ask whether the principle of substantive

equality would have been breached if Catalan had not

been promoted by the Catalan government. Would the

principle of substantive equity be breached if the Ca-

talan people had not been granted a right to receive

some classes in Catalan?

As pointed out by Kymlicka “many defenders of group-

specific rights for ethnic and national minorities insist

that they are needed to ensure that all citizens are tre-

ated with genuine equality. On this view the accom-

modation of differences is the essence of true equa-

lity”123. Kymlicka argues that “any plausible theory of

justice should recognize the fairness of these external

protections for national minorities. They are clear justi-

fied, I believe, within a liberal egalitarian theory, such as

Rawls’s and Dworkin’s”124. Positive measures favouring

minorities would be more than justified under the prin-

ciple of substantive equality. Therefore, if the Catalan

government had not granted the Catalan minority the

right to receive some classes in Catalan, the principle

122 Kymlicka, Will, Multicultural Citizenship: a liberal theory of minority rights, Clarendon Press, Oxford, 1995. On p. 4 “Affirma-tive action is generally defended as a temporary measure which is needed to move more rapidly towards a “colour-blind” society. It is intended to remedy years of discrimination, and thereby move us closer to the sort of society that would have existed”.

123 Ibid. p. 108

124 Ibid. p. 109

43

of positive discrimination might have been considered

breached by the Court.125

In Strasbourg, the principle of positive discrimination

has been considered as a possible way to grant rig-

hts for minorities in several occasions. The organs of

Strasbourg have even accepted the use of it in some

cases. The Mathieu-Mohin and Clerfay case126 and the

Commission’s decision in regards to the application fi-

led by Kennedy J. Lindsay and others127 are examples

of this.

In Mathieu-Mohin and Clerfay case, the claimants ar-

gued that “they could not elect French-speaking re-

presentatives to the regional assembly under which

Halle-Vilvoorde came and, as elected representatives,

that they could not sit in that assembly, whereas, mu-

tatis mutandis, Dutch-speaking voters and elected re-

presentatives in the same municipalities could”128. They

claimed a breach of Article 1 and 3 of the First Protocol

both alone and together with Article 14. The Commis-

sion agreed with the claimants129.

In the case of Lindsay and others v. the U.K., members

of a loyalist party in Northern Ireland complained that

the proportional representation system used in the Eu-

ropean Assembly Elections Act favoured the Nationa-

list Community (a national minority). They claimed that

as such the Act was discriminatory. The Commission

disagreed and accepted the positive discrimination to-

wards that Nationalist Community.

However, this is not the general line followed in Stras-

bourg. The principle of non-discrimination is not inten-

ded for granting minority rights. This principle is not

intended to be a general tool to obtain minority rights

125 See also the Permanent Court of International Justice (PCIJ) in its advisory opinion in the case concerning Minor-ity Schools in Albania. It held that minority rights represented some of the implications of the concept of substantive equality, as opposed to formal equality (equality in fact as distinct from equality in law).

126 Mathieu-Mohin and Clerfay case, note 117 above.

127 Commission’s decision of 17 January 1997 as to the ad-missibility of the Application of Kennedy J. Lindsay and others v. the United Kingdom (application 31699/96).

128 Mathieu-Mohin and Cler-fay case, note 117 above, p. 14 para. 41

129 Ibid., note 117 above, p. 14. The Court, however, departed from the Commission’s decision.


but to ensure equality, as interpreted by the European

Court of Human Rights. As the Commission recalled in

regard to the application of Silvius Magnago and Südti-

roler Volksparlei v. Italy case: “the Convention does not

compel the contracting parties to provide for positive

discrimination in favour of minorities”130.

In this sense, when a breach of the principle of non-

discrimination has been claimed in order to obtain po-

sitive measures for minority cultural groups, the organs

of Strasbourg have been reluctant to accept it131. Ac-

cording to the doctrine of margin of appreciation, sta-

tes are in a better position to decide whether positive

measures are necessary and possible in a particular

situation. On one hand, states should determine the

existence of an unequal situation and balance whet-

her the individual interest should be superposed over

the general interest. On the other hand, states should

study the possible actions that this kind of conduct may

bring about. As the Court stated in the case of Appleby

and others v. the UK, “Nor must such an obligation be

interpreted in such a way as to impose an impossible or

disproportionate burden on the authorities”132.

However, it is likely that the Court of Strasbourg would

recognise linguistic rights in education, if it recognised

a right to preserve one’s group identity or minority rig-

hts first133. Therefore, the following chapter will analyse

whether the ECHR includes provisions regarding mino-

rity rights either explicitly or implicitly.

130 The European Commission on Human Rights declares ap-plication 25035/94 by Silvius Magnago and Südtiroler Volk-spartei against Italy inadmis-sible. Commission’s Decision 15 April 1996.

131 For an in-depth analysis of these cases, see, e.g., Medda-Windische, Roberta, “The Eu-ropean Court of Human Rights and Minority rights”, Journal of European Integration, vol. 25, number 3, 2003, pp. 249-271. Also Pentassuglia, Gaetanao, Minorities in international Law, Minority issues handbook, Euro-pean Centre for minority issues, Council of Europe publishing, Strasbourg, 2002, at Chapter VI, section entitled “Substan-tive provisions and the Article 14 rights in the case-law under the ECHR” p. 120.

132 Appleby and others v the UK (Application 44306/98). Court’s judgment of 6 May 2003, p. 11, para. 40.

133 There are different justifica-tions for minority rights protec-tion in international law. See Spiliopoulou Åkermark, note 91 above. This thesis, although, only focuses on the importance of minority rights for the identity of minority cultural groups.

45

46

47

6. MINORITY RIGHTS

486. Minority rights

The Court might recognise linguistic rights in education

for minorities on the one hand because language rights

are generally considered essential to the identity and

survival of cultural minorities134; and on the other hand

because education is key to cultural development135. In

the Belgian Linguistic case, the Court did not recognise

a right to identity for minorities. However, it remains to be

seen whether the Court would recognise it at present.

6.1 MINORITY RIGHTS IN THE CONVENTION

There have been different attempts to include provisi-

ons or protocols into the ECHR regarding rights for mi-

norities, but none have succeeded. The first attempts

were made before the adoption of the Convention136.

On August 19 1949 Hermod Lannung, the Danish re-

presentative in the Consultative Assembly, stressed

the importance of national minorities inside Europe.

Furthermore, in the letters of 24 June 1950, the Com-

mittee on Legal and Administrative Questions drew the

attention of the Committee of Ministers to “the need for

an examination of the problem of the wider protection

of the rights of national minorities, with a view to a more

precise definition of the rights of these minorities”137.

Concerns regarding minorities continued even after the

publication of the ECHR. In 1954 the Legal Committee

reminded the Committee of Ministers of the importan-

ce of minorities and in 1956 a proposition was made to

set up a permanent sub-committee of the Legal Com-

mittee to work on concerns over national minorities.

The sub-committee was established and it put forward

a proposition “Persons belonging to a national minority

shall not be denied the right, in community with the

134 Belgian Linguistic case, note 41 above, p. 37. The Commis-sion understood the attachment of the Flemish population to their language and culture and their desire to preserve and develop it. See also Dunbar, Robert, “Mi-nority language rights in inter-national law”, International and Comparative Law Quarterly, vol. 5, 2001, pp. 90-120, p. 93.

135 See, Wilson, Duncan, Minor-ity Rights in Education, Lessons for the European Union from Estonia, Latvia, Romania and the former Yugoslav Republic of Macedonia, SIDA, Macedonia, 2000. Available at: http://www.right-to-education.org/content/lessons/roul_ww.pdf (last visit 09//2007).

136 See Spiliopoulou Åkermark, note 92 above, p. 200.

137 Council of Europe, Collected Edition of the “Travaux prépara-toires” of the European Con-vention on Human Rights vol. V, Martinus Njhoff-The Hague, 1977, The Netherlands, p. 40

49

others members of their group, or as far as compa-

tible with public order, to enjoy their own culture, to

use their own language, to establish their schools

and receive teaching in the language of their choice

or to profess and practice their own religion”138. The

Consultative Assembly supported the proposition

and recommended that the Committee of Minister

include it in the Second Protocol of the Conventi-

on. However, the Committee of Experts, in February

1973, concluded139 that there was no special need

to make the rights of minorities an issue of a further

Protocol to the ECHR.

Further attempts have been made until recently140.

In 1990, the Committee of Legal Affairs presented

a “Report on the Rights of Minorities” to the Par-

liamentary Assembly. The Parliamentary Assembly

adopted Recommendations 1134141, 1177142 and

1201143. The Assembly insisted on the fact that an

additional protocol had to be created along with the

Recommendations and it even drafted an additional

protocol on the rights of minorities to the ECHR144.

The Committee of Ministers never adopted it, howe-

ver. Thus, no binding obligations derive from the

protocol, even though, as Benoit-Rohmer said145,

the Parliamentary Assembly of the Council of Euro-

pe considers itself bound by it146.

138 Article 1 of the Explanatory report of the Framework Convention for the Pro-tection of National Minorities. Available at: http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm (last visit 10/2008).

139 Ibid. As seen from the Explanatory Report of the Framework Convention, the Committee of Experts gave its decision after having seen the judgment of the Bel-gian Linguistic Case.

140 See Spiliopoulou Åkermark, note 92 above, p. 220.

141 Parliamentary Assembly. Recommen-dation 1134 (1990) on the rights of minori-ties. Available at: http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta90/EREC1134.htm (last visit 09/2008).

142 Parliamentary Assembly. Recommen-dation 1177 (1992) on the rights of minori-ties. Available at: http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta92/EREC1177.htm (last visit 09/2008).

143 Parliamentary Assembly. Recom-mendation 1201 (1993) on an additional protocol on the rights of national minori-ties to the European Convention on Hu-man Rights. Available at: http://assembly.coe.int/Documents/AdoptedText/TA93/EREC1201.HTM

144 Article 8.1 of the protocol established that “every person belonging to a national minority shall have the right to learn his/her mother language and to receive an education in his/her mother language at an appropriate number of schools and of State educational and training establish-ments, located in accordance with the geographical distribution of the minority. For further information see: Parliamentary Assembly Recommendation 1255 (1955) on the protection of the rights of national minorities. Available at: http://assembly.coe.int/Documents/AdoptedText/ta95/erec1255.htm

145 Benoit-Rohmer, Florence, The Minor-ity Question in Europe: texts and Com-mentary, Council of Europe, Strasbourg, 1996, p. 37: “While it remains a mere As-sembly document, and as such deprived of all legally binding force, it still consti-tutes an important reference document within the Council of Europe because the Parliamentary Assembly considers itself bound by it. For example, Order 484 (1993) of the Assembly instructed the Committee on Legal Affairs and Hu-man Rights ‘To make scrupulously sure, when examining request for accession to the Council of Europe, that the rights included in this protocol are respected by the applicant countries’”.

146 In 2001, the Assembly also passed Recommendation 1492 regarding the protection of minorities.


The fact that minority rights are not expressly provided

in ECHR have also been emphasised by the Court and

the Commission.147: In 1978, in the case of X v. Austria,

the Commission claimed that “the Convention does not

provide for any rights of a linguistic minority as such,

and the protection of individual members of such mino-

rity is limited to the right not to be discriminated in the

enjoyment of the Convention Rights on the grounds of

their belonging to the minority”148. Likewise, in the deci-

sion of 3 October 1983 on the admissibility of applica-

tions 9278/81 and 9415/81, the Commission observed

that “the Convention does not guarantee specific rights

to minorities”149 and declared the application inadmis-

sible. Furthermore, the Court in 2000 stated the same:

“the Convention does not guarantee rights that are pe-

culiar to minorities and that the rights and freedoms set

out in the Convention are, by virtue of Article 1 of the

Convention, secured to ‘everyone’ within the jurisdicti-

on of the High Contracting Parties”150.

6.2 THE CONVENTION AS PART OF IN-TERNATIONAL AND EUROPEAN LAW

If there are no minority rights expressly granted by the

Convention, the only possibility by which the Court

might recognise linguistic rights in education for mi-

norities is by interpreting the Convention in the light of

European and international law and taking into account

that minority rights have been accepted in a variety of

international and multilateral conventions and agree-

ments151. Legal instruments that reflect concerns over

minorities, their language and their education have

been developed in the international arena152. Thus, if

the Court interprets the Convention in accordance to

these international instruments it might recognise the

147 See Mouchebo euf, Alcidia, Minority Rights Jurisprudence, Minority issues digest, European Centre for Minority Issues (ECMI), Council of Europe publishing, Strasbourg, 2006, p. 502

148 X. v. Austria application 8142/78. Commission’s deci-sion of 10 October 1979 on the admissibility of the application. p. 92-93.

149 G. and E v. Norway appli-cations 9278/81 and 9415/81. Commission’s decision of 3 Oc-tober 1983 on the admissibility of the application. p. 35 and 38.

150 Noack and others v. Germa-ny application 46346/99. Court’s decision of 5 May 2000, p. 10

151 See, amongst many others, Thornberry, Patrick, “Education and Minority Rights: A Short Sur-vey of International Standards”, International Journal on Minority and Group Rights, vol. 4, 1997, pp. 115-152.

152 Two of the most important ones are: a) The European Char-ter for Regional or Minority lan-guages of the Council of Europe (1992). Article 8 of this Charter adopts measures to promote the use of regional or minority lan-guages in public life. b) Council of Europe Framework Conven-tion for the Protection of Na-tional Minorities: Article 14 of this Framework Convention estab-lishes that “the Parties undertake to recognise that every person belonging to a national minority has the right to learn his or her minority language (...) In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the frame-work of their education systems, that persons belonging to those minorities have adequate oppor-tunities for being taught the mi-nority language or for receiving instruction in this language”.

51

existence of language rights in education at least for

minorities.

The court has already taken into account minority rights

in some of their decisions. In the Sidiropoulos case153,

for instance, the Greek authorities denied a Macedo-

nian minority group the right to register its association

in the official register, hence the applicants, members

of this Macedonian minority, alleging a breach by the

Greek authorities on the right to freedom of associati-

on, under Article 11 of the Convention. The Court took

into consideration that the Greek authorities had sig-

ned and ratified international documents aiming for the

protection of different cultural associations154 and ruled

in favour of the applicants. In its final judgment, the

Court took into consideration other international instru-

ments that Greece had committed itself to.

Furthermore, the Court has also recognised and taken

into consideration the need to protect the identity of

minority groups in the case Chapman v. the UK155. In

this case, the applicant alleged a violation of to right of

private life was infringed by the fact of not receiving a

planning permission. The applicant argued that by not

receiving the permission, the government was not res-

pecting his private and family life as a gypsy. Gypsies

are a minority and this lead the Court to analyse the

existing international law regarding minority rights be-

fore giving its final judgment. The Court admitted that

there was an emerging international consensus in re-

cognising the special needs of the minorities. Further-

more, the dissenting opinion of judges Pastor Ridruejo,

Bonello, Tulkens, Strážnická, Lorenzen, Fischbach and

Casadevall did consider a breach of Article 8 because

the competent authorities did not take into conside-

ration the special protection required by the gypsies

153 Sidiropoulos and oth-ers v. Greece (application 57/1997/841/1047). Court’s judgment, 10 July 1998.

154 Ibid.. p. 21 “(...) the Docu-ment of the Copenhagen Meet-ing of the Conference on the Human Dimension of the CSCE (Section IV) of 29 June 1990 and the Charter of Paris for a New Europe of 21 November 1990 – which Greece has signed – al-low them to form associations to protect their cultural and spiritual heritage (...)”.

155 Chapman. v. the UK (Ap-plication no. 27238/95). Court’s judgment of 18 January 2001.


as a minority156. In the case of Beard v. the UK157, the

applicant also filed a claim against the United King-

dom alleging a violation of Article 8 of the Convention.

The applicant submitted a planning application and the

competent authority refused arguing that the project

would have an adverse effect on highway safety and

an impact on visual amenity. The applicant was gipsy

by birth and he claimed that such a refusal was against

the right to private live of gypsies. When the Court

made its final judgment it took into consideration the

fact that gypsies are a non-territorial minority in Europe

and in need of special protection.

6.3 CONCLUSIONS

It is possible that if the Catalan minority in Spain had no

linguistic rights on education, and they claimed them in

Strasbourg, the Court would recognise them158. Howe-

ver, it would not be very likely. In the Beard case and

the Chapman case, the Court claimed that the consen-

sus for the protection of minority rights was not suffi-

ciently concrete: “The Court is not persuaded that the

consensus is sufficiently concrete for it to derive any

guidance as to the conduct or standards which Con-

tracting States consider desirable in any particular si-

tuation. The Framework Convention, for example sets

out general principles and goals but signatory States

were unable to agree on means or implementation”159

and did not recognise minority rights. Furthermore, it is

not only the protection of minority rights that is not suf-

ficiently concrete but the concept of minority groups as

such160. The recognition of a group as minority might

come together with certain rights161 and the recogni-

tion of minorities has been left to the discretion of the

states162.

156 Ibid. p. 36. See joint dis-senting opinion of judges pas-tor Ridruejo, Bonello, Tulkens, Strážnická, Lorenzen, Fischbach and Casadevall. They claimed a breach of Article 8 of the Con-vention basing their decision on the “(...) emerging consensus amongst the member States of the Council of Europe recognis-ing the special needs of minori-ties and an obligation to protect their security, identity and life-style (...) not only for the purpose of safeguarding the interests of the minorities themselves but also in order to preserve a cultur-al diversity of value to the whole community”.

157 Beard v. the UK (application 24882/94). Court’s judgment 18 January 2001.

158 Spain ratified the European Charter for Regional or Minority Languages on 9 April 2001

159 Beard v. the UK, not 157 above, p. 29, para. 105.

160 For an in-depth discussion, see, for example, Gayin, Eyassu, “The concept of minority in inter-national law: critical study of vital elements”, International Journal on minority and group rights, vol. 10, no. 3, 2003 no. 3, pp. 261-262.

161 States fear that the recog-nition of minorities and minority rights might raise nationalism and even secessionist’s movements. See, for example, Malanczuk, Peter: Modern Introduction to International Law, Routledge, London, New York, 1997, 7th Ed, p. 106. Besides, the recognition of minorities implies more obliga-tions for the states.

162 In Gorzelik and Others v. Poland (application 44158/98) the Court noted that it is not its task to express an opinion on whether or not the Silesians are a National Minority. Court’s judg-ment of 20 December 2001, p. 28 para. 62.

53

54

55

7. CONCLUSIONS

567. Conclusions

According to the Belgian Linguistic case and other

cases presented in this paper, the European Court of

Human Rights does not consider the right to be taught

in one’s mother language as a right safeguarded under

the European Convention of Human Rights. The rig-

ht of education provided in Protocol 1 Article 2 of the

Convention does not include any language rights as

such. Therefore, a Spanish-speaking person living in

Catalonia claiming a right to be taught only in Spanish

would most likely not succeed in Strasbourg.

As far as the language of instruction is comprehensi-

ble to the pupil, he cannot be granted linguistic rights.

The only circumstances under which a person might

be granted linguistic rights would if the pupil did not

understand the language of instruction. However, the

Court has never defined how much a pupil should un-

derstand. As the Court has said, this falls within the

competence of the competent authority, even though it

might be desirable for the Court to try to set some sort

of a threshold under which the right of education would

be considered as denied.

Likewise, the possibility that Article 2 of the First Proto-

col of the Convention read together with the principle

of non-discrimination would lead to linguistic rights on

education has also been neglected by the Court. The

non-discrimination principle applied to the right of edu-

cation refers only to access to educational institutions.

No person shall be denied the access to educational

institutions on the basis of language. This does not

mean that a particular person would have the right to

be taught entirely in his mother language just because

some people within the same state do have this opti-

on. Thus, the “Spanish Case” would not succeed in

Strasbourg.

57

It might seem rational to claim that, conversely, if the Ca-

talan minority had not been granted the right to receive

instruction in Catalan, that would constitute a breach of

Article 2 of the First Protocol ECHR jointly with the prin-

ciple of non-discrimination. However, even in this case, a

breach of these articles is unlikely to be recognised by the

Court. The Court is reluctant to use the principle of non-

discrimination to grant rights to minorities. Furthermore,

the bodies of Strasbourg have claimed that the national

authorities are in better position to decide whether affir-

mative measures in favour of minorities are necessary.

The Court has generally accepted the doctrine of the

margin of discretion, even though this doctrine has been

compared for example to a spreading disease163, since

this doctrine goes to the “detriment of the task of the

Commission and the Court to ensure the engagements

undertaken by the High Contracting Parties”164. However,

the fact remains that the court has in many of its rulings

relied on the doctrine of margin of appreciation.

On the other hand, the European Convention on Hu-

man Rights does not cover the notion of minority rig-

hts. No special provision regarding minority rights can

be contemplated within the ECHR and this has also

been emphasised by the bodies of Strasbourg. Thus,

it can be concluded that neither a general right to be

taught in one’s mother language nor linguistic rights in

education for minorities are recognised, at present, by

the Convention.

7.1 FINAL REMARKS

Will it be possible to have linguistic minority rights on

the grounds of education recognised by the European

Court of Human Rights in the future?

163 Van Dijk and Van Hoof, note 45 above, p. 604.

164 Ibid. p. 605. If an abuse of such doctrine is made, the role of the Strasbourg might be some-what questionable.

587. Conclusions

As seen from the previous Chapter, different legal ins-

truments for the protection and preservation of mino-

rities have been passed and accepted by the Member

States of the Council of Europe. This opens the pos-

sibility that a future protocol to the ECHR on minori-

ties will eventually be passed165. Furthermore, even if

this protocol were never be approved, the Community

Law that recognises the importance of minority rights

in different instruments, even though not all of them are

legally binding166, might influence the Court of Stras-

bourg167.

It is possible that in the future linguistic minority rights

on the grounds of education will be recognised by the

Court of Strasbourg. Nevertheless, this seems unlikely,

at least in the near future. It cannot be said that langua-

ge rights have been given the status of fundamental

rights under International Law yet168, and as the same

Court has asserted, minority rights are a complex and

sensitive issue that reduce the Court’s role to a strictly

supervisory one. As Judge Martens stated169, “(...) the

Court to act with prudence and to take care not to in-

terfere without a convincing justification”.

165 Even though “in the long term a stronger influence on the ECJ’s jurisprudence might be ex-erted by a protocol to the ECHR focused on minorities, along the lines of the proposal of the Parlia-mentary Assembly of the Council of Europe”. Pentassuglia, note 131 above, p. 146.

166 “A commitment does not have to be legally binding in or-der to have binding force; the distinction between legal and non-legal binding force resides in the legal consequences attached to the binding force” Van Dijk, P, “The Final Act of Helsinki-Basis for a Pan-European System?”, XI Netherlands Yearbook of Interna-tional Law (1980), pp 97-124.

167 In the Bosphorus case, the Court referred extensively to the case law of the European Court of Justice (ECJ) on the protection of fundamental rights. The Court considered that the protection of fundamental rights under Com-munity law to be “equivalent” to the law of the Convention. It does not go on to say that con-sequently any breach of Com-munity law leads a person to bring a claim under the ECHR. However, it does mean that the line between the systems cov-ered on one hand by the ECHR and the Community law on the other is not that clear anymore. Bosphorus Hava Yollari Turixm ve Ticaret Anonim Sirketi v. Ireland (application 45036/98) referred as “Bosphorus case” Court’s (Grand Chamber) decision.

168 Dunbar, note 134 above, p. 119.

169 Borgers case, note 24 above, p. 27

59

60

61

BIBLIOGRAPHY

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II

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III

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V

SPANISH LEGISLATION (translated to English)

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• Decree 576/1983, 6 December 1983. Published in

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• Order 8 September of 1983. Published in DOGC no.

362 of 9 September 1983.

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415 of 9 March 1984.

VI

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INTERNATIONAL AND REGIONAL AGREEMENTS

• European Convention on Human Rights, Rome 4 No-

vember 1950 (entered into force 3 September 1953).

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Minorities, 1 November 1995. (entered into force 1 Fe-

bruary 1998).

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1969 (entered into force 27 January 1980).

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1948.

COUNCIL OF EUROPE REGULATION

Parliamentary Assembly. Recommendation 1134 (1990)




VII

VIII

INDEX OF CASES

Index of cases

JUDGMENTS FROM THE SPANISH CONSTI-

TUTIONAL COURT170

Judgment no. 82/1986 of 26 June 1986

Judgment no. 337/1994 of 23 December 1994

Judgment no. 76/1990 of 26 April 1990

Judgment no. 83/1992 of 28 May 1992

DECISIONS AND JUDGMENTS FROM THE

STRASBOURG BODIES171

European Commission of Human Rights

Campbell and Cosans v. the UK. Report of 16

May 1980

G. and E v. Norway, Decision of 3 October 1983

Golder v. United Kingdom, Report of 1 June

1973

Lawless v. Ireland, Report of 19 December 1959

Lindsay ET AL v. the UK, Decision of 17 January

1997

Magnago and Südtiroler Volkspartei v. Italy, De-

cision of 15 April 1996

P. v. the UK, Decision of 12 December 1990

S.P. v. the UK, Decision of 17 January 1997

X. v. Austria, Decision of 10 October 1979

European Court of Human Rights

Abdulaziz, Cabales and Balkandali v. the UK,

Judgment of 28 May 1985

Al-Adsani v. the UK, Judgment of 21 November

2001

11

12

13

13

23

50

19/20

24/40

43

44

40

30

50

38

23

170 All the cases can be found in the database provided by the Constitutional Court website. Available at: http://www.boe.es/g/es/bases_datos/tc.php (last visit 09/2008)

171 All the cases can be found using the HUDOC database in the website of the European Court of Human Rights. Avail-able at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/ (last visit 09/2008)

XI

44

19/28

52

19

14/22/58

58

32/33

51/52

40

22

39

28

40

38

18/20/22

21

20/23/30/31

23

31

Appleby and others v. the UK, Judgment of 6 May

2003

Bankovic and others v. Belgium and others, Decision

of 12 December 2001

Beard v. the UK, Judgment of 18 January 201

Belilos v. Switzerland, Judgment of 29 April 1988

Borgers v. Belgium, Judgment of 30 October 1991

Bosphorus Hava Yollari Turizm Ve Anonim Sirketi v.

Ireland decision Judgment of 30 June 2005

Campbell and Cosans v. the UK, Judgment of 25

February 1982

Chapman v. the UK, Judgment of 18 January 2001

Chassagnou and others v. France, Judgment of 29

April 1999

Cossey v. the UK, Judgment of 27 September 1990

Cyprus v. Turkey, Judgment of 17 January 1970

Gaygusuz v. Austria, Judgment 16 September 1996

Handyside v. the United Kingdom, Judgment of 7 De-

cember 1976

Hornsby v. Greece, Judgment of 19 March 1997

Ireland v. the UK, Judgment of 18 January 1978

Johnston and others v. Ireland, Judgment of 18 De-

cember 1986

Kieldsen, Busk Madsen and Pedersen v. Denmark,

Judgment of 7 December 1976

Loizidou v. Turkey, Judgement of 18 December 1996

Marckx v. Belgium, Judgment of 13 June 1979

XII

Index of cases

Mathieu-Mohin and Clerfayt v. Belgium, Judg-

ment 2 March 1987

Noack and others v. Germany, Decision of 25 May

2000

Rees v. the UK, Judgment of 17 October 1986

Relating to Certain Aspects of the Laws on the

Use of Languages in Education in Belgium v. Bel-

gium, Judgment of 23 July 1989

Sidiropoulos and others v. Greece, Judgment of

10 July 1989

Thlimmenos v. Greece, Judgment of 6 April 2000

Tyrer v. the United Kingdom, Judgment of 27 June

1968

Wemhoff v. Germany, Judgment of 27 June 1968

Young, James and Webster v. the UK, Judgment

of 13 August 1981

PCIJ172

Minority Schools in Albania. Advisory Opinion of 6

April 1935, Series C, C76

172 All the cases can be found using the HUDOC database in the website of the European Court of Human Rights. Avail-able at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/ (last visit 09/2008)

XIII

40/43

50

22

20/cap.4&5

51

41

21

20

24

43

XIV

LIST OF ABBREVIATIONS

List of abbreviations

BOE . . . . . . . . . . . . . . . . . . .

CE . . . . . . . . . . . . . . . . . . . .

DOGC . . . . . . . . . . . . . . . . .

ECMI . . . . . . . . . . . . . . . . . .

The Convention or ECHR . .

The Court . . . . . . . . . . . . . .

ECtHR or the Court . . . . . . .

The Commission . . . . . . . . .

ECJ . . . . . . . . . . . . . . . . . . .

STC . . . . . . . . . . . . . . . . . . .

PCIJ . . . . . . . . . . . . . . . . . . .

UN . . . . . . . . . . . . . . . . . . . .

UNESCO . . . . . . . . . . . . . . .

Official Spanish Gazette

Spanish Constitution

Official Gazette of the Generalitat

European Centre for Minority Issues

European Convention on Human Rights

European Court of Human Rights

European Permanent Court of Human Rights

European Commission of Human Rights

European Court of Justice

Judgment of the Spanish Constitutional Court

Permanent Court of International Justice

United Nations

United Nations Educational, Scientific and Cul-

tural Organization.

XVII

XVIII

80



2a convocatòria del Premi de Recerca en Drets Humans

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www.gencat.cat/dirip

The Office for the Promotion of Peace and Human Rights is a department of the Government of Catalonia, whose core mission is to develop public policies for the promotion of peace and human rights.

In 2008 this office celebrated its second Award for the Study of Human Rights for original and unpublished works based on all aspects relating to the protection of Human Rights and Fundamental Liberties. This digital version relates to a work, that despite not having received an award, shows great merit.

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