SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36505/97 by Maria Pia DI EGIDIO against Italy

The European Court of Human Rights ( Second Section ), sitting on 6 April 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr M. Fischbach, Mr B. Conforti, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, Mr A.B. Baka, Mr E. Levits, judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 6 March 1997 and registered on 16 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicant is an Italian national born in 1984 and living in Sant’Omero (Teramo).

She is represented before the Court by Danilo Consorti, a lawyer practising in Corropoli (Teramo).

A. The circumstances of the case

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

The applicant suffers from a serious bilateral hearing impairment which causes difficulties in learning at school. She successfully completed her primary education, as she was assisted by a specially qualified remedial teacher ( insegnante di sostegno ).

In the school-year 1996-1997, when she began intermediate school, the applicant could not be granted the assistance of a remedial teacher. Such a teaching post had in fact been created in the school, but no qualified teacher had been found amongst those who were entitled to the post. After approximately sixty days during which the applicant could not draw any benefit from classes, upon the request and insistence of the applicant’s parents, of the town mayor and of several associations for the protection of handicapped persons, the Provincial School Council ( Ufficio Scolastico Provinciale) appointed D., a teacher of technical education ( educazione tecnica ), as the applicant’s remedial teacher. D. however was not qualified to communicate with low-hearing pupils, and consequently the applicant could not draw any benefit from classes.

The School Council ( Provveditorato agli Studi ) of Teramo met with the Mayor of Sant’Omero with a view to finding a solution to the applicant’s problem. The Teramo School Council however declared not to have the financial means for appointing a qualified remedial teacher.

The applicant’s parents as well as the Mayor of Sant’Omero applied to several authorities, including the Ministry of Education and the Ministry of Solidarity, pointing out that the applicant faced insufficient education and subsequently social isolation and that the applicant’s previous remedial teacher - R.M., the school’s teacher of technical education who was qualified to assist low-hearing pupils - was available to continue to assist her. On 15 January 1997, a written interrogation was addressed by a member of Parliament to the Ministry of Education in relation to the applicant’s situation.

By a letter of 18 February 1997, the Presidency of the Council of Ministers on behalf of the Ministry of Solidarity drew the Mayor’s attention to the recent decisions of the Government concerning cuts in the public expenditure for education, particularly in relation to disabled pupils.

On an unspecified date, the Provincial School Council appointed R.M. as the applicant’s remedial teacher, and D. as the school’s teacher of technical education. R.M. subsequently worked as the applicant’s remedial teacher in the school-years 1997-1998 and 1998-1999. In 1999 the applicant successfully completed her intermediate education. She is now attending Teramo Arts School ( Liceo Artistico ) and the Provincial School Council has provided qualified assistance for her for the current school-year.

B. Domestic Law and Practice

Section 12 § 5 of Law no. 104 of 5 February 1992 provides that, once a pupil has been recognised as a handicapped person, a specific educational plan shall be prepared, in co-operation with the student’s parents, by the competent personnel of the local social security authorities and the qualified teachers of the relevant school, including the qualified remedial teacher ( insegnante di sostegno ).

Under Section 13 § 3, the handicapped student is entitled to the appointment of a qualified remedial teacher.

The domestic courts have found that the appointment of such a teacher pursuant to Sections 12 and 13 of Law no. 104/92 is a right which gives cause of action before the ordinary courts (see judgment of the Bari District Court of 15 October 1996).

COMPLAINT

The applicant complains that she has been deprived of her right of effective access to education on account of her being deprived of a specially qualified remedial teacher despite her disability.

PROCEDURE

The application was introduced on 6 March 1997 and registered on 16 June 1997.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 20 April 1999, the Court decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 7 July 1999. The applicant replied on 21 September 1999.

THE LAW

The applicant complains that she was deprived of her right to effective access to education on account of the failure by the State authorities to provide her with the assistance of a qualified remedial teacher.

The Court has examined this complaint under Article 2 of Protocol n° 1 to the Convention, which, insofar as relevant, provides that “No person shall be denied the right to education.”

The Government argue in the first place that the applicant has failed to exhaust the domestic remedies which were available to her. They point out that the right to education is enshrined in the Constitution and gives cause of action before the ordinary courts - in this respect they refer to a judgment of the Bari District Court of 15 October 1996 - and that it is possible to seek an urgent measure by way of an ex-parte injunction to appoint a remedial teacher (they refer to a decision of the Bari Magistrate of 23 December 1992). The applicant failed to do so. At any rate, the Government consider that the period of time - approximately sixty days - during which the applicant was deprived of the assistance of a remedial teacher is too short to constitute a serious hindrance of her right to education; insofar as the applicant later challenged the adequacy of the teacher who had been appointed to assist her, the Government consider that there is nothing to corroborate this statement, and point out that this lack of evidence is also due to the applicant’s failure to seek the intervention - and thus the necessary investigations - of the ordinary courts.

The applicant underlines that she was first deprived, for over sixty days, of the assistance of a remedial teacher, and subsequently deprived of the assistance of a qualified remedial teacher. This had an impact on the whole school-year and thus impaired her right to education. She also suffered from a psychological trauma, and could not socialise. The authorities failed to intervene timely and adequately.

The Court recalls that Article 2 of Protocol No. 1 guarantees, in the first place, the right of 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 " (Eur. Court HR, Belgian Linguistic v. Belgium judgment of 23 July 1968, Series A no. 6, §§ 3-5, pp. 30-32).

In the present case, the applicant was deprived of a qualified remedial teacher for some months at the beginning of school year 1997-1998.

However, under Article 35 of the Convention, the Court may only deal with an application after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

As the Government have pointed out, it would have been open to the applicant to apply, at the beginning of the school-year 1997-1998, to the ordinary courts seeking the appointment - even by way of an urgent ex-parte injunction - of a qualified remedial teacher. The applicant failed to do so, and also failed to provide any explanation for this failure. She has therefore not exhausted the domestic remedies available to her under Italian law and there are no reasons which could exempt her from the obligation to do so.

In these circumstances, the application must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President