Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19315/92

by Rudolf BACHMANN, Michael HOFREITER

and Beatrix GULYN

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 23 December 1991

by Rudolf BACHMANN, Michael HOFREITER and Beatrix GULYN against Austria

and registered on 8 January 1992 under file No. 19315/92;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

5 July 1994 and the observations in reply submitted by the

applicant on 24 August 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Austrian citizens, all residents of Vienna.

They are the parents of children attending two private schools in

Vienna. Before the Commission the applicants are represented by

Dr. Thomas Höhne, a lawyer practising in Vienna.

The particular circumstances of the case

The applicants are members of the associations "Gemeinsam Lernen"

and "Schulkollektiv Wien". These associations run two private schools,

the "Schülerschule" and the "Volksschule", which may be considered an

alternative to the traditional Austrian school system. Both schools

have obtained the necessary licences from the Ministry of Education,

Arts and Sport (Bundesministerium für Unterricht, Kunst und Sport) in

accordance with the relevant domestic legislation pertaining to the

running of private schools in Austria.

The association "Gemeinsam Lernen" submitted a request to the

Ministry of Education, Arts and Sport requesting State subsidies for

its school in accordance with Section 21 of the Private Schools Act

1962 as amended (Privatschulgesetz "the 1962 Act"). The request was

rejected on 26 June 1990 as the necessary requirements were not, in the

Ministry's opinion, fulfilled. The association subsequently lodged a

complaint with the Constitutional Court (Verfassungsgerichtshof)

alleging a violation of Article 14 of the Convention referring to the

different possibilities of obtaining subsidies for private schools

depending on whether it concerned schools established by churches or

other recognised religious societies, or schools established by other

private associations or societies.

On 24 September 1990 the Constitutional Court decided not to

entertain the application in so far as it concerned constitutional

queries since, in view of its case-law as well as that of the European

Commission and Court of Human Rights, it did not have sufficient

prospects of success. The Court noted that the case did not fall

outside the Administrative Court's (Verwaltungsgerichtshof)

jurisdiction.

Subsequently, the association brought its complaint before the

Administrative Court relying in substance on the same arguments as in

the Constitutional Court. On 20 September 1993 the Administrative Court

dismissed the case.

An application for subsidies made by the association

"Schulkollektiv Wien" was also unsuccessful.

In the meantime the applicants had submitted an application

(Antrag) to the Constitutional Court in which they requested the Court

to repeal Sections 17 and 21 of the 1962 Act as being unconstitutional.

The applicants maintained in particular that the provisions were

of a discriminatory character in that they disclosed an unjustified

difference in subsidies available to private schools run by religious

institutions on the one hand, and other private schools on the other

hand.

On 12 June 1991 the Constitutional Court rejected the applicants'

application. It found that the provisions in question regulated the

legal position as regards private school subsidies between the State

and the schools in question. In the present case the issue of

subsidies was a matter between the State and the two associations which

ran the schools, whereas neither the individual members of the

associations nor the parents of children attending the schools could

be considered to be directly affected.

Relevant domestic law

Section 11 of the Private Schools Act 1962 as amended, in

particular in 1972, (Privatschulgesetz, "the 1962 Act") provides that

a school may only use the name of certain types of school with the

consent of the appropriate education authority. The conditions for

such consent are that the school must have substantially similar

methods and educational content as the equivalent State schools, that

teachers are properly qualified, and that it is very likely that the

school will continue for some years. The latter condition is assumed

by operation of law in the case of church schools.

Section 14 of the 1962 Act divides private schools into two

categories: schools which fall under Section 11 ("Section 11 schools"),

and schools which do not. Section 11 schools are "recognised" (es wird

das Öffentlichkeitsrecht verliehen) if they offer instruction

appropriate to the Austrian school system, and if their teaching is as

successful as that at an equivalent State school. Non-Section 11

schools are recognised if, in addition, their structures, syllabuses

and equipment, and the qualifications of their teachers, comply with

certain requirements, and if the school has shown that its teaching is

successful. The criteria of Section 14 are deemed to have been met by

certain bodies.

Further provisions of the 1962 Act read, so far as relevant, as

follows.

(translation)

Section 17

"(1) Recognised churches and religious societies shall be

granted subsidies for staff expenditure for religious private

schools which have been recognised as public schools in

accordance with the following provisions.

(2) Religious private schools are schools which are maintained

by recognised churches and religious societies ... ".

Section 21

"(1) The State may grant subsidies, in accordance with the

Federal Budget Act and subject to means, to private schools which

are recognised as public schools but which do not fall under

Section 17 if:

a) the school corresponds to a need of the community;

b) the school does not operate with the intention of drawing

financial benefit;

c) entry conditions for pupils are the same as those applied

for public State schools;

d) the number of pupils per class does not fall below the

average number of pupils per class of a public State school

of the same type and in the same area.

(2) In the case of private primary and secondary schools, a

need within the meaning of Section 21 (1) (a) does not exist if

it would lead to the lowering of the organisational capacity of

a public State primary or secondary school in the catchment area

of the private school.

(3) Subsidies for the schools referred to at Section 21 (1)

shall be granted in accordance with Section 19 (1). Before

seconding a teacher as a subsidy in kind, the governing body of

the school shall be heard."

COMPLAINTS

The applicants maintain that as they are members of the

associations running the schools in question, and as they are the

parents of children attending these schools, they are personally

affected in their right as parents to participate in their children's

education by the fact that the State refuses to grant subsidies.

They furthermore maintain that the lack of subsidies reduces, or

even eliminates, their rights in respect of their children's education

in a discriminatory manner contrary to Article 2 of Protocol No. 1 to

the Convention, read in conjunction with Article 14 of the Convention.

The applicants are of the opinion that there exists no reasonable

justification for subsidising religious private schools more favourably

than other private schools.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 December 1991 and registered

on 8 January 1992.

On 6 April 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

5 July 1994. The applicants replied on 24 August 1994.

THE LAW

The applicants complain, under Article 2 of Protocol No. 1

to the Convention, read in conjunction with Article 14 (P1-2+14) of the

Convention, of the availability of State subsidies for private schools

which, in their opinion, discriminates against non-religious

establishments.

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

follows:

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

exercise of any functions which it assumes in relation to

education and to teaching, the State shall respect the right of

parents to ensure such education and teaching in conformity with

their own religious and philosophical convictions."

Article 14 (Art. 14) of the Convention reads 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 other status."

The Government submit that the applicants may not claim to be

victims of the alleged violations of the Convention as the case

concerns the making of subsidies, and the recipient of the subsidies

was (or would have been) the body maintaining the school, not the

parents. The applicants submit that the position is different under

the Convention from domestic law, and that the decision not to grant

subsidies under Section 21 of the 1962 Act directly affected their

legal position as parents of children at recognised church schools.

The Commission notes that the applicants' application to the

Constitutional Court concerning the above was rejected by the Court due

to the fact that they were not personally affected in respect of

subsidy grants, as this was a matter between the State and the

associations in question.

The Commission recalls that under Article 25 (Art. 25) of the

Convention it may only examine complaints from a person,

non-governmental organisation or group of individuals if they can claim

to be victims of a violation by one of the High Contracting Parties of

the rights set forth in the Convention. However, the Commission finds

that it may leave open the question whether the applicants may claim

to be victims within the meaning of Article 25 (Art. 25) of the

Convention because, even assuming this to be the case, the application

is inadmissible for the following reasons.

In connection with Article 2 of Protocol No. 1 (P1-2) to the

Convention, the Government explain that the schools in which the

applicants were interested were not equivalent to State schools in that

they were not entitled to use certain types of names for their schools.

They point out that the provision requires the State to refrain from

religious or philosophical indoctrination, but does not go so far as

to require a particular type of education in State schools, nor does

it require the State to grant particular types of subsidies. They

underline that the applicants were able to, and did, set up schools,

and that the schools were recognised within the meaning of Section 14

of the 1962 Act. As to Article 14 (Art. 14) of the Convention, they

point to the differences between the schools attended by the

applicants' children on the one hand and State schools on the other,

and conclude that the two groups cannot be compared. They add that

church schools are exclusively "schools regulated by law" within the

meaning of Section 11 of the 1962 Act.

The applicants suggest that the Government, by concentrating on

the position of the schools attended by their children in relation to

State schools, have failed to answer the central issues raised by the

application, namely the difference in treatment between private schools

which are not church schools and those which are. They see no reason

to assume, without more, that all church schools are automatically

entitled to use the name of a particular type of school under

Section 11 of the 1962 Act. In any event they consider the point

irrelevant because the case turns on Sections 17 and 21 rather than

Section 11 of the 1962 Act.

The Commission recalls that Article 2 of Protocol No. 1

(P1-2) to the Convention guarantees the right to start and run a

private school (cf. Jordebo and others v. Sweden, No. 11533/85, Dec.

6.3.87, D.R. 51, p. 128 with further references).

The applicants were able to participate in schools which were set

up and run privately, and which respected their philosophical

convictions. Given that there is no positive obligation on the State

under Article 2 of Protocol No. 1 (P1-2) to subsidise any particular

form of education (No. 7782/77, Dec. 2.5.78, D.R. 14, p. 179, again

with further references), the Commission considers that the substantive

requirements of Article 2 of Protocol No. 1 (P1-2) have been met in the

present case.

However, "... a measure which in itself is in conformity with the

requirements of the article ensuring the right or freedom in question

may ... infringe this article when read in conjunction with Article 14

(Art. 14) for the reason that it is of a discriminatory nature" (Eur.

Court H.R., Belgian Linguistic Judgment of 23 July 1968, Series A no.

6, p. 33, referred to in No. 7782/82, referred to above). Accordingly,

although Article 2 of Protocol No. 1 (P1-2) does not give rise to an

obligation to subsidise any particular type of education, Article 14

(Art. 14) nevertheless requires that any subsidies which are made

should not be made in a discriminatory fashion.

Article 14 (Art. 14) prohibits treating differently, without any

objective and reasonable justification, persons in "relevantly" similar

situations (cf. Eur. Court H.R., Fredin judgment of 18 February 1991,

Series A no. 192, p. 19, para. 60).

The Commission has put questions to the respondent Government in

this connection, but finds, in agreement with the applicants, that the

observations by the Government - by concentrating on the question of

the applicants' status as victims - do not deal with this central

issue. The Commission has, however, examined the question in

connection with the application made by one of the associations to

which the present applicants belong (No. 23419/94, Verein Gemeinsam

Lernen v. Austria, decision of even date herewith). In that decision

the Commission concluded that the reasons for treating non-church

private schools differently from church schools were compatible with

Article 14 of the Convention, taken together with Article 2 of Protocol

No. 1 (Art. 14+P1-2). In particular, it noted that church schools meet

a need in the sense that if the educational facilities provided by the

church were not available, the State would be required to make

equivalent provision. Small private schools such as the schools in

which the applicants are interested, however, cater for the wishes of

those involved in them, and so do not meet such a need. The Commission

concluded that the difference in the way the two types of school can

receive subsidies was not discriminatory.

The Commission finds that those reasons - always assuming that

the present applicants may claim to be victims - apply mutatis mutandis

to any difference in treatment suffered by the applicants as a result

of the applicability of Section 21 of the 1962 Act to the schools to

which they sent their children, but not to church schools.

The examination of this complaint accordingly discloses no

appearance of a violation of Article 2 of Protocol No. 1 to the

Convention read in conjunction with Article 14 (P1-2+14) of the

Convention.

It follows that the application is 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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BACHMANN, HOFREITER AND GULYN v. AUSTRIA

BACHMANN, HOFREITER AND GULYN v. AUSTRIA