Right to education (Article 2 of Additional Protocol No. 1 to the ECHR)

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical conviction.

Article 2 of Additional Protocol No. 1 to the ECHR provides for a right, thus not only for an aim of the State. The first sentence of this provision guarantees the possibility of having access to educational institutions. The right to use educational capacities available at a precise moment must be secured to all persons.²⁰¹³ However, the State does not have the obligation to choose an educational system or organizational form, nor does it have the obligation to provide a certain degree of education. There is no precise right to subsidise certain educational institutions. The State has certain manoeuvring room in shaping its educational system.²⁰¹⁴ The fact that State institutions have established educational institutions does not create an absolute and unlimited right of access to these institutions. The State is entitled to set limitations on access (i.e., admission) to educational institutions by defining the number of students and duration of the program. The refusal of access (admission) does not constitute a violation as long as the individual is not discriminated against compared with other interested persons.²⁰¹⁵ Therefore, if a student is not allowed to study any longer, since he/she overstepped the maximum duration of study, Article 2 of Additional Protocol No. 1 to the ECHR has not been violated.²⁰¹⁶

As for the State support of educational institutions, the prohibition of discrimination also applies. For the right to education to be effective, it is further necessary, inter alia, that the individual, who is provided with that right, should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force, official recognition of studies which have been completed.²⁰¹⁷

The first sentence concerns the right of the child and the second sentence the right of the parent. The right to education contained in the first sentence is an autonomous right and does not derive, for example, from the right of the parent contained in the second sentence, which is an additional right. The structure of the Article shows that these provisions constitute a whole which is determined by the content and scope of the first sentence.²⁰¹⁸

Unlike the European Commission of Human Rights which has ruled, in effect, that the right to education is concerned primarily with elementary or secondary school education and not necessarily with advanced degree or higher specialised education, the European Court of Human Rights recently declared admissible complaints concerning the denial of the right to education by an applicant who was refused entrance to university. The Chamber has outlined that there is nothing in the wording of that provision specifically restricting the right to elementary or secondary education so that the regulation could also cover advanced degree education at an institution prescribed by law.²⁰¹⁹ Such case- law was confirmed and developed in a subsequent decision taken in 2006 so that the master studies were included in the scope protected by Article 2 of Additional Protocol No. 1 to the ECHR.²⁰²⁰

The right to education calls for regulation by the legislature, regulation which may vary in time and place according to the needs and resources of the community and individuals. It goes without saying that such regulation must never injure the substance of the right to education or conflict with other rights enshrined in the Convention. The Convention therefore implies a just balance between the protection of the general interests of the community and the respect of fundamental human rights.²⁰²¹ It is justified to forbid an institution from educating a target group if the education offered did not meet the minimum conditions as to the quality provided for by law.²⁰²² Such minimum conditions can relate to the premises of the educational institution, which are necessary to ensure health and professional conditions for the educational process. Limitations in this sense must be based on facts, must be understandable and must be adequate. Formalistic and unrealistic justifications are not sufficient.²⁰²³ For example, the closure of a private higher school was justified by lack of adequate capacity of the premises, although the inspectors did not find it nor did the students complained of it. Moreover, the public university did not comply with the offer and agreement according to which the students of the higher school were to continue their studies by explaining that there were not enough students (20) to justify organizing classes for them. Furthermore, the State authorities tried to disqualify the higher school publicly and before the public institutions, including its students, by considering the school illegal and by announcing that the diplomas acquired at that school would not be recognised.²⁰²⁴