Article 2 of Protocol No. 1 to the ECHR guarantees a right to education, which is indispensable to the furtherance of human rights in a democratic society.[1] It applies to mandatory pre-school education,[2] primary and secondary education, and higher education institutions set up by the State.[3] The right to education may give rise to implicitly accepted limitations, bearing in mind that the right to access to education “by its very nature calls for regulation by the State.”[4] Consequently, the domestic authorities enjoy a certain margin of appreciation, but restrictions must not impair the essence of the right or render it ineffective; they must be foreseeable for those concerned and pursue a legitimate aim.[5] While there is no exhaustive list of “legitimate aims” that may be pursued when limiting enjoyment of the right to education,[6] any limitation must maintain a proportionate balance between the means employed and the aim sought to be achieved.[7] The State has responsibilities concerning both public and private schools.[8]

Article 2 of Protocol No. 1 must be interpreted in harmony with other rules of international law of which the ECHR forms part, including the UNCRC, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the UNESCO Convention against Discrimination in Education[9], the UN Convention on the Rights of Persons with Disabilities[10] and the ESC.[11] States should respect and fulfil the obligations and commitments within existing Council of Europe and United Nations standards on the rights of the child.

As to the (Revised) ESC, States Parties are, under  Part II, Article 17§2, required – either directly or in partnership with public and private organisations – to implement measures that provide a free primary and secondary education for all individuals under 18 (unless majority is attained earlier under the law applicable the child).[12] Article 17 requires States Parties to establish and maintain an education system that is both accessible and effective.[13] While private actors may contribute, their involvement must not detract from the quality or accessibility of public education.[14] States Parties must ensure effective vocational training by promoting technical and vocational programmes for all.[15] Under Article 17, equal educational opportunities must be guaranteed for all children, especially for groups at risk.[16]

 

[1] Timishev v. Russia, Nos 55762/2000 and 55974/00, 13 December 2005, § 64

[2] Djeri and Others v. Latvia, Nos. 50942/20 & 2022/21, 18 July 2024, §§ 118 & 122.

[3] Leyla Şahin v. Turkey [GC], No. 44774/98, 10 November 2005, §§ 137 & 141.

[4] Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium" (Merits), Nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, 23 July 1968, § 5 of "The Law" part I.A (the “Belgian linguistics” case).

[5] Leyla Şahin v. Turkey [GC], No. 44774/98, 10 November 2005, § 154.

[6] Unlike ECHR Articles 8,9,10 and 11.

[7] Leyla Şahin v. Turkey [GC], No. 44774/98, 10 November 2005, § 154 et seq.

[8] Kjeldsen, Busk Madsen and Pedersen v. Denmark, Nos.  5095/71, 5920/72, and 5926/72, 7 December 1976.; see also O’Keefe v. Ireland [GC], No 35810/09, 28 January 2014, §§ 144-152

[9] Catan and Others v. the Republic of Moldova and Russia [GC], Nos 43370/04, 8252/05 and 18454/06), 19 October 2012, § 136

[10] Çam v. Turkey, No. 51500/08, 23 February 2016, § 53

[11] See Ponomaryovi v. Bulgaria, No. 5335/05, 21 June 2011, §§ 34-35, referring to the Revised European Social Charter.

[12] Without prejudice to other specific provisions set out in the ESC, notably Article 7. See Appendix to the European Social Charter (Revised) – European Treaty Series – No. 163.

[13] Conclusions 2003, Bulgaria, European Committee on Social Rights.

[16] Mental Disability Advocacy Center (MDAC) v. Bulgaria, Complaint No. 41/2007, decision on the merits of 3 June 2008, §34, citing Conclusions 2003, Bulgaria.