FIRST SECTION

DECISION

Application no . 300/11 C.P. against the United Kingdom

The European Court of Human Rights (First Section), sitting on 6 September 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska, President, Ledi Bianku, Kristina Pardalos, Linos-Alexandre Sicilianos, Paul Mahoney, Armen Harutyunyan, Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 21 December 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, C.P., is a British national, who was born in 1991 and lives in Belfast. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Mr F. Shiels of M. Madden & Finucane, a firm of solicitors practising in Belfast.

2 . The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Addis of the Foreign and Commonwealth Office.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

1. The complaints against the applicant and his exclusion from school

4 . The applicant was a pupil at Dunluce School (“the school”) during the academic year 2006/7. As a “controlled school” the school was managed by its Board of Governors and the Employing Authority was the North Eastern Education and Library Board (“the N.E.E.L.B”).

5 . On 31 January 2007 a female pupil (“the complainant”) informed the Principal of the school that the applicant was engaged in conduct inside and outside school that was causing her distress. The complainant did not wish to make a formal complaint against the applicant and did not want him to be informed of her allegations because she was afraid of him. Later that day, a friend of the complainant told the Principal that the complainant was suffering from deep distress, had extremely low self-esteem, and was “thinking of ending it all”. The Principal also spoke to the complainant ’ s mother, who expressed similar concerns about her daughter ’ s state of mind and the possibility of suicide. She identified the applicant as the cause of the problem and said the complainant was very vulnerable and needed to be monitored closely.

6 . In the days that followed, the Principal had daily meetings with the complainant and some of her friends. He received confirmation from her friends about aspects of the applicant ’ s behaviour which they had witnessed.

7 . Consequently, the Principal regarded the complainant ’ s report as being “sincere and genuine” and “extremely serious”.

8 . On 1 February 2007 the Vice-Principal of the school attended a multi ‑ disciplinary case conference arranged by Social Services to consider the applicant. The conference, which was attended by the applicant ’ s mother, his grandmother, and a representative of the police, had been convened after one or more persons alleged that he had committed criminal offences of a sexual and violent nature outside the school. These complaints were unrelated to the one made by the complainant.

9 . When the Principal of the school was informed of the allegations discussed at the conference, he contacted a Child Protection Officer from the N.E.E.L.B. He informed the officer of the complainant ’ s allegations and expressed his concern about the risk the applicant might pose to other pupils.

10 . On 6 February 2007 a Risk Assessment meeting was held. At the meeting – to which the applicant, his mother (his legal guardian) and his grandparents (with whom he was residing) were not invited – a formal “Action Plan” was agreed. Social Services were to carry out an assessment of the alleged incident with the complainant and the impact on her mental state. While the assessment was being carried out, two options were considered: constant supervision of the applicant at school; and suspension of the applicant with arrangements for his education off-site. As the Principal was not satisfied that sufficient teaching and staff resources were available to ensure constant monitoring of the applicant on school premises, it was agreed that he should be suspended from school for five days, with the possibility of extension, while the assessment of the complainant took place. In order to protect the complainant ’ s identity, it was decided that the applicant should not be informed about her complaint.

11 . On 7 February 2007 the Principal informed the applicant in person that he was being suspended for a period of five days and that the suspension was precautionary. He was informed that allegations had been made against him in relation to his behaviour but that no further details could be provided. Following the meeting, the Principal telephoned the applicant ’ s mother to tell her that he had been suspended. He also wrote to his grandparents to inform them that “following the case conference on Thursday 1 February 2007” and “[b]ased on the information presented at that meeting” the applicant had been suspended for five days with the possibility of extension. The grandparents were further informed that work would be available for collection at the school during this period.

12 . The applicant was due to sit his GCSE (General Certificate of Secondary Education) examinations in the spring of 2007. GCSEs are important national assessments in a number of subjects, studied over the course of two years, which lead to internationally recognised qualifications. At the date of his suspension, the GCSE curriculum had already been completed and the focus of education at the school was on revision and preparation for the examinations.

13 . The applicant ’ s suspension was extended for three further five-day periods until 13 March 2007. The applicant ’ s grandparents were notified of these extensions by letters dated 14 February 2007, 23 February 2007 and 5 March 2007.

14 . From 7 February 2007 to 14 March 2007 the school had made work available for the applicant in the subjects of Mathematics, English, Science, Religion, Business and Communication Systems, Music and History which was to be collected from the school and then returned for marking. The work was collected only during the first week of his suspension and it was not returned for marking.

15 . On 12 March 2007 the Principal wrote to the applicant ’ s grandparents to inform them that home tuition had been arranged with effect from 14 March 2007 and that the applicant would thereafter be marked on the school roll as “educated off-site”. From 13 March 2007 to 20 April 2007 the applicant received eight hours of home tuition a week in English, Mathematics and Science. He co-operated well with the tuition provided, but it was noted that he was a pupil who needed assistance to improve his basic skills.

16 . On 14 March 2007 a strategy meeting took place with a view to assessing risk and discussing the ongoing management of the situation.

17 . On 20 April 2007 the Principal wrote to all Year 12 pupils, including the applicant, informing them that the normal Year 12 timetable had ceased and that they were permitted to study at home or at school pending their GCSE examinations.

18 . On 4 May 2007 the applicant ’ s mother and grandparents attended a meeting at the school to discuss his sit uation and to facilitate his re ‑ integration. It was noted that Social Services had not yet completed their assessment of the complainant. However, as the Year 12 timetable had ended, there were sufficient resources to allow for close supervision of the applicant. He therefore returned to the school but was isolated from the other pupils on grounds of his own personal safety.

2. Proceedings in the domestic courts

19 . The applicant brought proceedings for judicial review against the school and the N.E.E.L.B. on the grounds, inter alia , that his suspension had been unlawful and that there had been a breach of his right to education under Article 2 of Protocol No. 1 to the Convention.

20 . Pursuant to paragraphs 3 and 4 of the Scheme prepared by the N.E.E.L.B. (see section on Domestic Law and Practice below), the Principal has a power to exclude a pupil (permanently or temporarily) on disciplinary grounds. Where a pupil is excluded on disciplinary grounds, he must be given reasons for the suspension and be given an opportunity to put forward his version of events.

22 . The applicant appealed on the ground that the judge had been wrong to conclude that his suspension was lawful under domestic law. On 26 February 2009 the Court of Appeal dismissed the applicant ’ s appeal. In doing so, it accepted that, although the Schools (Suspension and Expulsion of Pupils) Regulations (Northern Ireland) 1995 (“the 1995 Regulations”) contained no express provision dealing with “precautionary” suspension, such a power could be inferred. However, such a suspension did not need to comply with the N.E.E.L.B. ’ s Scheme; the only requirement was that it should be exercised reasonably. Bearing this in mind, the court was satisfied that the applicant, his mother and his grandparents had been sufficiently aware of the reasons for his suspension. The Principal had been in a difficult position where no perfect solution was possible. The course he chose had not been the only one realistically available, but it was at least defensible as a practical means of protecting the complainant and ensuring that the applicant ’ s education did not suffer beyond that which was inevitable as a result of his suspension.

23 . The applicant was granted leave to appeal to the Supreme Court. On 23 June 2010 the Supreme Court handed down its judgment in In the matter of an application by ‘ JR17 ’ for Judicial Review (Northern Ireland) [2010] UKSC 27.

“53. The Principal was undoubtedly faced with a very difficult situation on 1 February. Understandably, he was extremely concerned for the well-being of [the complainant]. He decided that he should respect her confidence. This decision was bound to put him in conflict with para 4.2.2 of the Scheme and probably para 5.1 as well. He decided to suspend the appellant without giving him an opportunity to give his version of events and without giving his parents/grandparents the reasons for his decision, and to suspend him until Social Services had completed their assessment of [the complainant]. It is not clear what assessment Social Services was being required to undertake, still less how the outcome of the assessment would impact on the decision to suspend the appellant. Further, it is not clear what the Principal would have done if (as proved to be the case) the assessment was not completed within the period available for suspensions (not more than 45 days in a school year).”

25 . Likewise, Lord Rodger noted

“89. ... Here, the Principal took a serious view of what the girls had told him. He clearly thought that the matter could not be passed over without further investigation and without appropriate steps being taken if the allegation proved to be true. But the Principal could never have properly concluded that the allegation was indeed true and taken action to deal with the situation without informing the appellant of the allegation against him and giving him an opportunity to give his version of events. So this was a situation where, as envisaged in the policy paper, the girl ’ s complaint could not be kept confidential. ...

90. In fact, the Principal took no steps to investigate the allegation himself. Instead, on 6 February, the risk assessment meeting decided that Social Services were to carry out an assessment of the alleged incident with the girl and of any impact on her. It does not appear that any approach to the appellant was envisaged. So this assessment was unlikely to be conclusive and certainly could never have resulted in any action against the appellant. But, in the meantime, the appellant was to be suspended, initially for 5 days, while the assessment took place....”

26 . The court dismissed the applicant ’ s claim that his suspension amounted to a violation of Article 2 of Protocol No. 1. Relying on the decision of the House of Lords in Ali v. Headteacher and Governors of Lord Grey School [2006] UKHL 14, Lord Dyson, in his leading judgment, concluded that there was no Convention right to education of a particular kind or quality other than that prevailing within the Contracting State. There would therefore be a breach of Article 2 only if the individual was denied “effective access” to such educational facilities as the State provided for such pupils. In this case educational facilities were available for pupils who had been suspended from school and the applicant had not been denied access to them. Consequently, there had been no restriction on his right to education and no question of proportionality arose.

27 . In agreeing with the other Supreme Court Justices in respect of the unlawfulness of the applicant ’ s exclusion, Lady Hale noted that the applicant ’ s exclusion had been unjust in two ways:

“99. He has been away from school for nearly three months at a critical time. His tutor ’ s reports indicate that he attended and cooperated very well with the eight hours ’ tuition he was offered each week but he was clearly a pupil who needed help to improve basic skills. ... More seriously, he was not given any opportunity of explaining his side of the story in a way which would have made any difference. The Principal left others to take the matter forward and made no further attempt to establish the truth or to negotiate a solution which would enable both the pupils concerned to continue their education in the school.

... ... ...

103. As to article 2 of the First Protocol to the European Convention on Human Rights, the test is that laid down by Lord Bingham of Cornhill in the Lord Grey School case at para 24: “have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?” This is a question of fact and degree. Left to myself, I might have thought that three months out of school in the run-up to important public examinations was indeed to deny him effective access to the educational facilities which the state provides for year 12 pupils. He should not have been relegated to eight hours ’ tuition a week for six weeks. But I appreciate that others think and have thought that it may be enough to be “effective”. The appellant has achieved his major objective of establishing that he should not have been suspended in the way that he was. Had this been recognised at an early stage, he might also have achieved his objective of being allowed back into school. The only purpose of finding a violation of his Convention rights would be to pursue a claim for damages, which could only succeed if the court were satisfied that an award were necessary to afford him just satisfaction: see Human Rights Act 1998, s 8(3). Miss Quinlivan rightly did not place this at the forefront of her submissions. I see no point, therefore, in pressing my doubts to a dissent but, as a declaration is a discretionary matter, I would prefer to make no declaration at all on this issue, the appellant having achieved just satisfaction from his declaration on the first.”

B. Relevant domestic law and practice

1. Legislative framework in Northern Ireland for suspension and expulsion

28 . Article 49 of the Education and Lib raries (Northern Ireland) Order 1986 (“the 1986 Order”) applies to “controlled schools”. It provides that:

“(1) Each board shall prepare a scheme specifying the procedure to be followed in relation to the suspension or expulsion of pupils from schools under its management.

....

(4) A scheme prepared under paragraph (1) ... shall provide that a pupil may be expelled from a school only by the expelling authority and shall include provision for such other matters as may be prescribed.”

29 . Article 134 provides that the Department of Education for Northern Ireland (“the Department”) may make regulations for the purpose of giving effect to the 1986 Order. Pursuant to article 134 of the 1986 Order, the Department made the Schools (Suspension and Expulsion of Pupils) Regulations (Northern Ireland) 1995 (“the 1995 Regulations”). Regulation 3 provides:

“3. Without prejudice to the generality of Article 49(4) of the 1986 Order a scheme prepared under Article 49(1), (2) or (3) of that Order shall include provision for the following other matters, that is to say –

(a) a pupil may be suspended from school only by the principal;

(b) an initial period of such suspension shall not exceed five school days in any one school term;

(c) a pupil may be suspended from school for not more than forty-five school days in any one school year;

(d) where a pupil has been suspended from school, the principal shall immediately -

i. give written notification of the reasons for the suspension and the period of the suspension to the parent of the pupil, to the board and to the Chairman of the Board of Governors...; and

ii. invite the parent of the pupil to visit the school to discuss the suspension;

(e) the principal shall not extend a period of suspension except with the prior approval of the Chairman of the Board of Governors and shall in every such case give written notification of the reasons for the extension and the period of extension to the parent of the pupil, to the board....”

30 . The N.E.E.L.B. has prepared a Scheme entitled “Procedures for the Suspension and Expulsion of Pupils in Controlled Schools” which elaborates on the procedural safeguards contained within the 1995 Regulations (“the Scheme”). The Scheme includes the following requirements :

“3.1 A pupil may be suspended only by the principal.

3.2 An initial period of suspension shall not exceed 5 school days in any one school term.

3.3 A pupil may be suspended from school for not more than 45 school days in any one school year.

3.4 The principal shall not extend the period of suspension except with the prior approval of the chairman of the Board of Governors and shall in every such case give written notification of the reasons for the extension and the period of extension to the parent of the pupil and to the Board.

Steps to be Followed Prior to Suspension:

4.1 The school ’ s disciplinary policy describes the standards of behaviour expected from pupils and outlines the procedures and sanctions to be adopted when these guidelines are not adhered to.

4.2 The disciplinary policy will provide for the suspension of a pupil in certain circumstances. The option of suspending a pupil for a prescribed period should only be considered:

4.2.1 after a period of indiscipline – The school is required to maintain a written record of events and of the interventions of teachers, contacts with parents and any requests for external support from the Board ’ s educational welfare and educational psychology services; and/or

4.2.2 after a serious incident of indiscipline – The school is required to have investigated and documented the incident. The investigation should include an opportunity for the pupil to be interviewed and his or her version of events given before the decision to suspend.

Instigating Suspension

5.1 On taking the decision to suspend a pupil the principal must immediately notify the parents, in writing of the suspension, its duration and the reasons for the suspension (for sample letters see appendix 2). The letter notifying the parents of the suspension must be sent out on the day of the suspension. Its letter is sent home with the pupil this must be followed by a copy sent by first class post.

5.2 The letter must also invite the parents to visit the school to discuss the suspension. Should the parents accept this invitation the principal may consider it appropriate to invite other parties such as educational welfare, educational psychology or social services. The meeting should be chaired by the principal.

5.3 Schools should keep full notes of the meeting.

5.4 A copy of the letter must be sent to the chairman of the Board of Governors.

5.5 All suspensions from all grant aided schools must be notified to the Board using form S1 (see appendix 3) and accompanied by a copy of the letter sent to the parent.

5.6 A suspended pupil can only be sent home before the end of the normal school day with the agreement of the parent and only if the pupil can be delivered directly into the care of the parent or of a person previously agreed by the parents.

5.7 Work should be made available to the pupil during the suspension.

5.8 On the day of the pupil ’ s return from suspension the pupil should report immediately to the principal or nominated teacher.”

2. Background to the legislation

31 . The background to the legislation is to be found in the “Report of the Working Party on the Management of Schools in Northern Ireland (1979)” otherwise known as the “Astin Report” . The Astin Report stated that there was an urgent need for clarification and greater precision in legislation concerning suspensions and expulsions of pupils from grant-aided schools (paragraph 7.70). It recommended that suspension and expulsion, though regrettably necessary on occasion, should be steps of last resort (paragraph 7.71).

3. Department of Education policy guidance relating to suspensions

32 . A 2001 publication of the Department of Education entitled “Pastoral Care in Schools: Promoting Positive Behaviour” deals with suspensions and expulsions. In relation to suspensions it notes that “informal” suspensions are illegal and that all suspensions should be carried out in accordance with the legislation and relevant scheme. In all cases, it stressed, the principles of natural justice apply and a key consideration will be whether the punishment was proportionate. The pupil concerned must always be able to give his or her side of the case and suspension should be made only after full examination of the relevant facts and evidence.

4. Judicial consideration of Article 2 of Protocol No. 1 to the Convention

33 . The leading domestic judicial decision is that of the House of Lords in Ali v. Headteacher and Governors of Lord Grey School [2006] UKHL 14. Lord Bingham, giving one of the two leading judgments, considered that:

“The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. ... The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?”

34 . Lord Hoffmann put his interpretation of the provision in slightly different terms:

“Except in cases in which the applicant has been wholly excluded from some sector of the domestic educational system, the European Court ’ s jurisprudence on article 2 of the First Protocol has never shown any interest in the procedures by which the applicant was denied entry to or expelled from a particular educational establishment. ... article 2 of the First Protocol is concerned only with results: was the applicant denied the basic minimum of education available under the domestic system? For this purpose it is necessary to look at the domestic system as a whole. ...

....

61. ... In the case of article 2 of the First Protocol, that would have required a systemic failure of the educational system which resulted in the respondent not having access to a minimum level of education.”

COMPLAINT

35 . The applicant claimed that his exclusion from the school breached his right to education under Article 2 of Protocol No. 1 to the Convention.

THE LAW

36 . Article 35 §3 (b) of the Convention provides:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(c) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

A. The parties ’ submissions

37 . The Government argued that the applicant had not suffered a “significant disadvantage” within the meaning of Article 35 § 3 (b) of the Convention. Although the Government accepted that a temporary exclusion from school for a period of approximately three months could, in principle, be capable of constituting a “significant disadvantage”, they submitted that there had been no such disadvantage in the present case as the applicant ’ s complaint under Article 2 of Protocol No. 1 was almost entirely reliant on the fact that his exclusion was not lawful under domestic law; the Supreme Court had expressly recognised this unlawfulness; he had been afforded access to suitable alternative education during his temporary exclusion; and he had adduced no evidence – before this Court or the domestic courts – that he had suffered any loss or damage as a result of his unlawful exclusion. The Government therefore contended that in the circumstances, the only “disadvantage” he could claim to have suffered was that his temporary exclusion from school was not recognised by the national courts as constituting a breach of Article 2 of Protocol No. 1 to the Convention. However, in the circumstances of the present case, this could not be characterised as a “significant disadvantage”.

38 . Furthermore, following Ali v. the United Kingdom , no. 40385/06, 11 January 2011, the present case could not be said to raise any novel point for consideration under the Convention.

39 . The applicant, on the other hand, submitted that he had suffered a “significant disadvantage” as he had been excluded from school for three months at a crucial point in his education. However, even if the Government were correct in suggesting that the only “disadvantage” he suffered was the national courts ’ failure to expressly recognise that there had been a breach of Article 2 of Protocol No.1, the applicant submitted that the lack of acknowledgment of the breach was, on the facts of the case, a “significant disadvantage”.

B. The Court ’ s assessment

1. General principles

2. Application of the general principles to the present case

(a) Has the applicant suffered a “significant disadvantage”?

43 . The Court agrees with the parties that in most instances a three ‑ month exclusion from school will constitute a “significant disadvantage” for a child. However, in the present case there are several factors diminishing the significance of any enduring “disadvantage” suffered by the applicant as a result of the measure of suspension against which his application is directed.

44 . To begin with, although the applicant ’ s argumentation for alleging a violation of his right to education under Article 2 of Protocol No. 1 is couched in expansive language, when analysed the core of that argumentation can be seen to be that his suspension from school had not been accompanied by adequate safeguards. In substance, this was the issue considered by the Supreme Court, which ruled that the applicant had been unlawfully suspended from school, contrary to the requirements of domestic law, because he had not first been given the opportunity to provide his version of events, because his grandparents had not been informed of the decision and because no proper investigation had been carried out before the measure of temporary exclusion was imposed (see the summary of the Supreme Court ’ s ruling at paragraphs 24-25 and 27 above). However, the Supreme Court rejected the applicant ’ s cl aim under Article 2 of Protocol No. 1 on the ground that there had been no restriction on his right to education (see paragraph 26 above), on the basis of an interpretation of the scope of Article 2 that has since been overtaken by the jurisprudence of this Court (as to which, see paragraph 49 below).

45 . The Court thus accepts that the principal “disadvantage” suffered by the applicant is to be located in the fact that there was no finding by the national courts that the same failings which had rendered his temporary exclusion from school unlawful under domestic law also constituted violation of Article 2 of Protocol No. 1.

46 . It is true that, depending on the circumstances, the making of such a finding is capable of entailing financial consequences for the schoolchild affected, as damages can be awarded for a breach of a Convention right but not for a suspension from school which is unlawful under domestic law. Indeed, according to Lady Hale, the only judge in the Supreme Court who was prepared to regard the Article 2 of Protocol of No. 1 as being engaged on the facts of the case, “the only purpose of finding a violation of (the applicant ’ s) Convention rights would be to pursue a claim for damages, which could only succeed if the court were satisfied that an award was necessary to afford him just satisfaction” in accordance with the Human Rights Act. However, she considered that, with the ruling handed down by the Supreme Court, the applicant had “achieved his major objective of establishing that he should not have been suspended in the way that he was”. Remarking that, “rightly”, he had not placed the pursuit of a claim for damages at the forefront of his submissions, Lady Hale therefore saw no point in pressing her view on the Convention to a dissent. The applicant had, she concluded, “achieved just satisfaction” in the form of the Supreme Court ’ s declaration of non-compliance with the requirements of domestic law, so that no formal declaration of a violation of the right to education under Article 2 of Protocol No. 1 was required in addition (see paragraph 27 above). In this connection of a possible financial impact (see paragraph 42 above), the Court notes that there does not appear to have been any evidence before the national courts to suggest that the applicant had sustained any actual prejudice as a result of his unlawful suspension from school.

47 . As to the severity of the Convention violation alleged, which is to be assessed by taking into account not only the applicant ’ s subjective perceptions but also what is objectively at stake (see paragraph 42 above), it is material that, as analysed by the Court (see paragraph 42 above), the failings impugned by the applicant in his application are essentially procedural. Such failings may indeed ground a finding of a violation of Article 2 of Protocol No. 1. Although this provision, like other provisions in the Convention, contains no specific proced ural requirements, the decision ‑ making process regulating the exercise of the right to education must be fair and such as to afford due respect to the interests protected by this provision. In particular, the administrative procedure in question should afford to the persons adversely affected a reasonable opportunity of putting their case to the responsible authorities (see, mutatis mutandis , McMichael v. the United Kingdom , 24 February 1995, Series A no. 307-B, in relation to Article 8 of the Convention, and AGOSI v. the United Kingdom , 24 October 1986, Series A no. 108, in relation t o Article 1 of Protocol No. 1). However, what follows from the procedural nature of the complaint made in the present case is, inter alia , that this Court, if it were to declare the application admissible and find a violation, could not speculate whether the outcome would have been different and less detrimental to the applicant – that is to say, whether he would or should have been excluded from school and, if so, for how long and under what conditions – had a procedure embodying adequate safeguards protecting his right to education been followed. Put in another way, any prejudice sustained by the applicant regarding his right to education in substantive terms is speculative.

48 . In the light of the foregoing considerations, the Court cannot discern objective grounds to hold that in the circumstances of the case at hand the applicant suffered a “significant disadvantage” in the sense of important adverse consequences by reason of the national courts ’ failure to expressly recognise that, in addition to being unlawful under domestic law, the manner of his suspension from school also gave rise to a violation of Art icle 2 of Protocol No. 1.

(b) Does respect for human rights compel the Court to examine the case?

49 . The second element contained in Article 35 § 3 (b) compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States ’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency. In the present case, in rejecting the applicant ’ s Convention argument, the Supreme Court followed its own earlier judgment in Ali v. Headteacher and Governors of Lord Grey School [2006] UKHL 14, which suggested that there would only be a breach of Article 2 of Protocol No. 1 where there was a systemic failure of the educational system which resulted in the respondent not having access to a minimum level of education (see paragraphs 33-34 above). In Ali v. the United Kingdom , cited above, which was handed after the Supreme Court gave judgment in the applicant ’ s appeal, this Court adopted a different approach, holding that Article 2 of Protocol No. 1 required the United Kingdom to guarantee to every child of compulsory school age within its jurisdiction access to an educational institution or facility which would provide an education in accordance with the national curriculum. Any interference with that right had to be in pursuit of a legitimate aim, foreseeable, and a fair balance had to have been struck between the interference and the justification for the measure.

50 . Consequently, even if the Supreme Court ’ s analysis of the content of the guarantee afforded to schoolchildren by Article 2 of Protocol No. 1 could be characterised, as the applicant submits (see paragraph 40 above), as being “flawed”, the Court has since given appropriate guidance on the issue in a judgment specifically concerning the United Kingdom, namely the judgment in Ali v. the United Kingdom , cited above. Thus, the general interpretative problem raised by the Supreme Court ’ s understanding of the scope of Article 2 of Protocol No. 1 in the applicant ’ s case has been resolved by this Court ’ s judgment in Ali. This being so, the Supreme Court ’ s Convention reasoning in the applicant ’ s case cannot, in and of itself, constitute a compelling reason to warrant an examination of the present application on its merits. As the applicant has not suggested any other “compelling reason” which would warrant an examination of the case, the Court concludes that respect for human rights as defined in the Convention and its Protocols does not require it.

(c) Has the case been “duly considered by a domestic tribunal”?

51 . Finally, the third criterion under Article 35§3(b) does not allow the rejection of an application if the case has not been “duly considered by a domestic tribunal”. The purpose of this criterion is to ensure that every case receives a judicial examination whether at the national level or at the European level, in other words to avoid a denial of justice (see Korolev (dec.), cited above). The applicant ’ s legal challenge of his suspension from school was examined by the national courts at three levels of jurisdiction (see paragraphs 19-27 above), in the last instance by the Supreme Court which, as this Court has found (see paragraph 44 above), considered in substance the same subject-matter of complaint as that raised in the present application. That being so, the Court concludes that the applicant ’ s case was “duly considered by a domestic tribunal” within the meaning of A rticle 35§3(b).

(d) Conclusion

52 . The three stated criteria for inadmissibility therefore being present on the facts of the present case, the application must be declared inadmissible pursuant to Article 35§§3(b) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 September 2016 .

             Renata Degener Mirjana Lazarova Trajkovska              Deputy Registrar President