Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29043/95

by Petra KARUS

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 20 May 1998, the following members being present:

MM N. BRATZA, Acting President

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 September 1995

by Petra KARUS against Italy and registered on 2 November 1995 under

file No. 29043/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German national, currently residing in

Heidelberg. She is represented before the Commission by

Mr Ernesto Vecchio, a lawyer practising in Brindisi.

The facts of the present case, as submitted by the applicant, may

be summarized as follows.

The applicant, who was studying German and Italian languages and

literatures in Heidelberg, during the academic year 1993/94 attended

the University of Bari within the so-called "ERASMUS" program. She

later decided to continue her studies in Italy.

On an unspecified date the applicant passed the Italian language

and culture exam, which foreign students are required to pass prior to

enrolling in an Italian university.

On 30 November 1994 the applicant filed with the Bari University

her university curriculum, on the basis of which the Faculty Council

("Consiglio di Facoltà) was to decide which part, if any, of the

studies she had previously carried out in Germany could be validated,

that is to say which exams she would not be required to pass again.

The applicant further paid 215,000 Italian liras - representing

the first instalment of the inscription fees which amounted to 800,000

liras for foreign students - and thus enrolled in the University of

Bari.

Pending the decision of the Faculty Council as to whether and how

many of her German exams would be validated, the applicant did not know

which courses to attend. Accordingly she did not attend any.

On 14 April 1995 the applicant finally obtained a copy of the

decision of the Faculty Council, dated 14 February 1995, whereby only

two exams passed in Germany had been validated ("history of the Italian

language" and "history of the German language").

In the light of this decision and, in particular, of the

consequent necessity for her to pass again all the basic German grammar

and language exams, the applicant decided to abandon her studies in

Italy.

COMPLAINTS

1. The applicant complains, under Article 2 of Protocol No. 1, that

her right to education was violated. She submits that the delay of the

university administration in providing her with a decision as to which

of her previous exams would be validated effectively prevented her from

attending classes since she did not know which exams she would have to

pass at the end of the year. She also complains about the merits of

such decision.

2. The applicant further points out that an Italian student has to

pay an inscription fee which may vary between 0 and 900,000 Italian

liras depending upon criteria such as the student's family income, the

student's university curriculum, the student's place of origin etc.,

whereas a foreign student has to pay a fixed amount of 800,000 Italian

liras, which can be reduced by a maximum of 50% if the student submits

a certificate of indigence issued by the competent consulate.

The applicant thus complains that foreign students are

discriminated against in the enjoyment of their right to education, and

invokes Article 14 of the Convention.

3. The applicant finally complains, under Article 13, that there are

no remedies in Italian law to complain about the delays of the

university administration in deciding on her request to have the

previous exams validated; that there are no remedies to seek redress

of the merit of such decision and finally that there are no remedies

in respect of the above-mentioned discrimination against foreign

students.

THE LAW

1. The applicant complains, under Article 2 of Protocol No. 1

(P1-2), that her right to education was violated.

Article 2 of Protocol No. 1 (P1-2) to the Convention, insofar as

relevant, reads as follows:

"No person shall be denied the right to education."

The Commission recalls the Convention organs' case-law according

to which Article 2 of Protocol No. 1 (P1-2) guarantees, in the first

place, the right to access to educational institutions existing at a

given time, and the possibility of drawing benefit from the education

received. This right "by its very nature calls for regulation by the

State, regulation which may vary in time and place according to the

needs and resources of the community and of individuals. It goes

without saying that such regulation must never injure the substance of

the right to education nor conflict with other rights enshrined in the

Convention" (Eur. Court HR, Belgian Linguistic judgment of 23 July

1968, Series A no. 6, pp. 30-32, paras. 3-5; No. 14688/89, Dec.

4.12.89, D.R. 64, p. 188).

The Commission further recalls that from this provision flows

"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 or she has completed". The recognition of completed studies

may be subject to an examination, in conformity with the rules in force

in each State (see. Eur. Court HR, Belgian Linguistic judgment,

loc. cit., pp. 31, 84).

The Commission recalls on the other hand that the right to

education contemplated in Article 2 of Protocol No. 1 (P1-2) mainly

concerns elementary education and not necessarily specialist advanced

studies (see, amongst others, No. 24515/94, Dec. 17.1.96, D.R. 84, p.

98; No. 14524/89, Dec. 6.1.93, D.R. 74, p. 14).

In the present case, the Commission notes that the applicant has

not been denied access to education, since she was allowed to enrol in

the University of Bari. The Commission further notes that the applicant

had to undergo an examination in Italian language and culture, and was

subsequently invited to submit her university curriculum to the Faculty

Council in order for the latter to proceed to the possible validation

of the applicant's previous studies, which is in accordance with the

rules in force in Italy (see mutatis mutandis No. 7864/77,

Dec. 9.10.78, D.R. 16, p. 82). The Commission observes that the

applicant's previous studies were in fact partly validated.

The point at issue is thus only the validation of specific exams

completed abroad.

The Commission considers however that, even assuming that a right

to obtain recognition of studies completed abroad or even of part of

the studies completed abroad may be derived from Article 2 of Protocol

No. 1 (P1-2), Article 2 (Art. 2) cannot be interpreted as guaranteeing

the right to obtain the validation of each exam completed abroad.

It follows that this complaint is incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant alleges discrimination against foreign students,

to the extent that the rules governing admission fees are different for

Italian nationals and foreigners.

In particular, the applicant points out that an Italian student

has to pay an admission fee which may vary between 0 and

900,000 Italian liras depending upon criteria such as the student's

family income, the student's university curriculum, the student's place

of origin etc., whereas a foreign student has to pay a fixed amount of

800,000 Italian liras, which can be reduced by a maximum of 50% if the

student submits a certificate of indigence issued by the competent

consulate.

Article 14 (Art. 14)of the Convention is worded as follows:

"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 status."

The Commission recalls in the first place that Article 14

(Art. 14) has no independent existence, but plays an important role by

complementing the other normative provisions of the Convention. A

measure which is in itself in conformity with one of the normative

provisions of the Convention may, however, infringe that provision

taken in conjunction with Article 14 (Art. 14) if it is applied in a

discriminatory manner. It is therefore sufficient for the subject-

matter of the application to fall within the scope of an Article which

protects a particular freedom for it to be validly alleged that there

has been a violation of the principle of non-discrimination (see Eur.

Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31,

pp. 15-16, para. 32).

The Commission observes that in the present case the applicant

complains of the difference in the way the university tuition fees are

calculated for national and non-national students in Italy. The

discrimination is therefore invoked in respect of the right of access

to tertiary education.

Insofar as the complaint relates to the fact that it is left for

the consulates to assess the financial situation of the students, the

Commission considers that, even assuming that Article 2 of Protocol

No. 1 (P1-2) guarantees the right for foreigners to enrol in

universities abroad, the difference in treatment is founded on the

objective difficulties the University administration would encounter

should it have itself to assess the financial situation of the

students. The relevant consulates are clearly best placed to make this

assessment. The difference in treatment has therefore, in the

Commission's opinion, an objective and reasonable basis. It is true

that, unlike Italian students who qualify on financial grounds, foreign

students cannot obtain full exemption in respect of tuition fees.

However, the Commission considers that this difference in treatment has

an objective and reasonable justification, namely the much higher

degree of probability that foreign students will leave Italy on

completion of their studies, whereas students of Italian nationality

are, as a general proposition, more likely to remain in Italy where,

by applying the knowledge and skills which they have acquired at public

expense, they will be able to make a valuable contribution to Italian

society and in this manner repay, albeit in an indirect and

unquantifiable way, the financial investment from which they have

benefited.

Insofar as the complaint relates to the fact that foreign

students might have to pay higher fees than national students, the

Commission observes that the applicant has neither shown nor alleged

that she was effectively affected, namely that she would have paid less

had she been treated as a national student. The Commission therefore

finds that this aspect of the complaint does not disclose any

appearance of a violation of the provisions invoked.

It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant further invokes Article 13 (Art. 13).

Article 13 (Art. 13) of the Convention requires a remedy in

domestic law where an individual has an arguable claim to be the victim

of a violation of his rights under the Convention. An arguable claim

falls to be considered on the particular facts of each case and the

nature of the legal issue raised (cf. Eur. Court HR, Plattform "Ärzte

für das Leben" v. Austria judgment of 21 June 1988, Series A no. 139,

p. 11, paras. 25, 27).

In the light of its finding above in respect of the applicant's

complaints under Article 2 of Protocol No. 1 (P1-2) and under that

provision taken in conjunction with Article 14 (Art. P1-2+14) of the

Convention, the Commission does not find any prima facie issues under

the above-mentioned articles which could be considered as "arguable

claims" within the meaning of Article 13 (Art. 13). Consequently

Article 13 (Art. 13) does not apply in respect of the applicant's

complaints.

It follows that this complaint is likewise manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO N. BRATZA

Secretary Acting President

to the First Chamber of the First Chamber

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KARUS v. ITALY

KARUS v. ITALY

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