Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18511/91

by Bengt DAHLBERG, Eva DAHLBERG

and Bengt Olof DAHLBERG

against Sweden

The European Commission of Human Rights (Second Chamber) sitting in

private on 2 March 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 20 November 1990 by

Bengt DAHLBERG, Eva DAHLBERG and Bengt Olof DAHLBERG against Sweden and

registered on 15 July 1991 under file No. 18511/91;

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 facts of the case, as submitted by the applicants, may be

summarised as follows.

The first and second applicants are a Swedish married couple, born

in 1944 and 1946 respectively. The third applicant is their son, born in

1982. The family resides at Malmö. All applicants are Swedish citizens.

Before the Commission they are represented by Mr. Göran Ravnsborg, a

university lecturer.

From the time of his birth the third applicant suffers from certain

linguistic and physical disabilities. In 1986 the first and second

applicants contacted a so-called special state school (specialskola) for

children with certain disabilities, the Hällsbo school, to have their

son's problems examined in order to file a preliminary application to

have him admitted to the school when he reached school age.

The examination took place in 1988 following which the examiners

suggested that the child be placed in a training class in another special

school (särskola). In 1989 the first and second applicants formally

applied to have their son admitted to the Hällsbo school. However, by

decision of 13 April 1989 the school, after having recalled the outcome

of the earlier examination, refused to accept the child. The school

stated that its decision was based on the findings in that earlier

examination which had shown that the child's disabilities as such were

of the kind to make him suitable for admittance but that his level of

development was such that the school lacked the necessary means to

satisfy his needs.

The first and second applicants appealed against this decision to

the National School Board (skolöverstyrelsen). By decision of

31 July 1989 the Board rejected the appeal. The Board noted, inter alia,

that the first and second applicants had not contacted the local school

board to have an examination made of the most appropriate school

alternative for their child. In view hereof it did not find it

established that the third applicant's handicaps were such that he should

attend the special school instead of some other school category, such as

a normal or another special school. The Board concluded that the Hällsbo

school's decision was lawful. It added that it was of the opinion that

the third applicant's case should be further examined in order to

determine the best school alternative for the child. Furthermore, it was

pointed out that the first and second applicants were free to request

that the third applicant's school-start should be postponed.

The first and second applicants appealed against this decision to

the Government claiming that their son did not only have a duty to go to

school but also a right to receive the most appropriate education

available and that this implied attending a special school such as the

Hällsbo school. By decision of 23 May 1990 the Government rejected the

applicants' appeal.

COMPLAINTS

1. The applicants complain of a violation of Article 6 para. 1 of the

Convention as they maintain that they could not challenge the

Government's decision of 23 May 1990 before the courts.

2. The applicants further complain that the refusal to provide the

third applicant with a place in the Hällsbo school violates their son's

right to education as guaranteed by Article 2 of Protocol No. 1 to the

Convention and the parents' right to respect for their religious and

philosophical convictions in this context as guaranteed by the second

sentence of the same provision.

THE LAW

1. The applicants maintain that they have been denied access to court

and invoke Article 6 (Art. 6) of the Convention.

The first sentence of Article 6 para. 1 (Art. 6-1) of the Convention

reads as follows:

"1. In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair and

public hearing within a reasonable time by an independent and

impartial tribunal established by law."

The Commission recalls the constant jurisprudence of the Convention

organs, according to which Article 6 para. 1 (Art. 6-1) applies only to

the "determination" of "civil rights and obligations" or any "criminal

charge". As the Convention organs have held on several occasions, there

are cases which are not included in either of these categories and which

thus fall outside the scope of Article 6 para. 1 (Art. 6-1) (see e.g. No.

10144/82, Dec. 11.5.83, D.R. 33 p. 276).

In the present case there is no question of a "criminal charge" and

furthermore the Commission recalls that the right to elementary education

is not a civil right within the meaning of Article 6 (Art. 6) of the

Convention (cf. No. 14688/89, Dec. 4.12.89, D.R. 64 p. 188). Accordingly

there is no civil right at issue in the present case for which reason

Article 6 para. 1 (Art. 6-1) of the Convention is not applicable. It

follows that this part of the application must be rejected as being

incompatible ratione materiae with the provisions of the Convention

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

2. The applicants further maintain that there has been a violation of

the son's right to education as guaranteed by Article 2 of Protocol No.

1 (P1-2) to the Convention and the parents' right in this context to

respect for their religious and philosophical convictions under the

second sentence of that provision.

As regards the complaint on behalf of the son the Commission

observes that Article 2 of Protocol No. 1 (P1-2) does not grant an

absolute right. In principle, it guarantees access to public educational

facilities which have been created 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", as long as the substance of the right to education is

preserved (Eur. Court H.R., Belgian Linguistic judgment of 23 July 1968,

Series A no. 6, pp. 30-32, paras. 3-5). The Commission recalls that

handicapped children's needs are cared for within the present Swedish

system and the Commission recognises that there must be a wide measure

of discretion left to the appropriate authorities as to how to make the

best use possible of the resources available to them in the interests of

handicapped children generally. In the present case the third applicant

was not denied the right of education, but only to be placed in a

particular school as this school, in the authorities' view, which was

based on a thorough examination of the child, did not have the necessary

facilities to provide for his needs. In these circumstances the

Commission finds that the impugned decision fell well within the State's

margin of appreciation in this field. Consequently, there is no

appearance of a violation of Article 2 of Protocol No. 1, first sentence

(P1-2-1).

As regards the parents' rights under Article 2 of Protocol No. 1

(P1-2) to the Convention the Commission recalls that the decision to deny

the child access to the school was based on an examination of him in

which it was concluded that his needs could not be satisfied by the

school in question in view of his level of development. Thus, the refusal

was based on findings of facts concerning the child's development whereas

there is nothing which indicates that the parents' religious or

philosophical beliefs in this respect have been disregarded in a way

which would be at variance with Article 2 of Protocol No. 1 (P1-2) to the

Convention.

In these circumstances, the Commission concludes that the present

case does not disclose any appearance of a violation of Article 2, first

sentence, or second sentence of Protocol No. 1 (P1-2-1, P1-2-2). It

follows that this part of 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, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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DAHLBERG AND DAHLBERG v. SWEDEN

DAHLBERG AND DAHLBERG v. SWEDEN

LEXI