FIFTH SECTION

DECISION

Application no . 61145/09 Ljiljana HUHLE and G ü nter HUHLE against Germany

The European Court of Human Rights (Fifth Section), sitting on 27 August 2013 as a Committee composed of:

Ganna Yudkivska , President, Angelika Nußberger , André Potocki , judges , and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 13 November 2009,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Ms Ljiljana Huhle and Mr G ü nter Huhle , are German nationals, who were born in 1963 and 1950 respectively and live in Seevetal , Lower Saxony.

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

A. The circumstances of the case

3 . The applicants are the parents of two children, a son who was born in 1992, and a daughter who was born in 1993. The applicants decided that their children should attend a public school which taught classical philology and which was situated in the neighbouring federal state of Hamburg. The applicants ’ son attended the school in 2003/2004 and 2004/2005 and the daughter in 2004/2005.

4 . In 2004 the Lower Saxony school administration provided the applicants with free tickets for public transport to and from the school. The applicants requested reimbursement of travel expenses incurred by use of their private car.

5 . On 2 September 2004 the administration dismissed the applicants ’ request. It found that the school was accessible by public transport. It stated that it would reimburse the costs of transport by private car only on those days when the applicants ’ son was scheduled to tidy up classrooms after school.

6 . On 5 September 2004 the first applicant lodged an administrative appeal. She mainly argued that travelling to school by public transport was unreasonably long and unsafe. She added that her daughter now also needed to travel to school by private car. On 14 October 2004 the administration dismissed the administrative appeal.

7 . On 12 November 2004 the applicants lodged an action before the administrative courts.

8 . On 21 November 2005 the Lüneburg Administrative Court held that the state of Lower-Saxony was obliged to ensure that pupils could reach the school they attended within a reasonable time. It stated that pursuant to the court ’ s case-law a one-way trip to or from school was not allowed to exceed 90 minutes while 60 minutes was still reasonable. It referred in this context to an expert opinion of the Lower Saxony Transport Commission of 1979. It found that in the present case the journey to school was unreasonably long. It stated that a school day, including attendance, travel and homework, should not exceed 8 hours per day. In addition, it pointed out that the children had to change bus twice per trip .

9 . On 4 June 2008 the Lower Saxony Administrative Court of Appeal quashed the Administrative Court ’ s judgment and dismissed the remaining claim. It reiterated that the state of Lower Saxony was obliged to ensure that pupils could reach a school within a reasonable time. It confirmed that 90 minutes for secondary schoolchildren for one way was unreasonably long, while 60 minutes was still reasonable. In the concrete case between 63 and 79 minutes were needed not including the necessary transfer and waiting times. However, the court underlined that the children attended not the closest secondary school which led to a comparable qualification ( Abitur ) , but a distant secondary school with a special and rare curriculum. In these circumstances slightly longer travel times had to be tolerated. The court lastly rejected the applicants ’ argument that public transport was unsafe.

10 . On 15 January 2009 the Federal Administrative Court dismissed the applicants ’ appeal on points of law. It stated that the case concerned primarily the law of the state of Lower Saxony, not Federal law, and the judgment showed no disrespect for the principles of Federal law.

11 . On 16 June 2009 a three judge panel of the Federal Constitutional Court dismissed the applicant ’ s constitutional complaint without further reasoning.

12 . By letter of 18 March 2013 the applicants informed the Court that their children had stopped attending the secondary school in question because transport arrangements were unreasonable.

B. Relevant domestic law

13 . Section 114 in connection with section 63 of the Education Act of Lower Saxony stipulate that the local authorities have to bear the reasonable school travel expenses for students residing in their area or alternatively have to reimburse the parents for expenses necessarily incurred.

COMPLAINTS

14 . The applicants complained under Articles 5, 8, 9 and 14 of the Convention and under Article 26 of the Universal Declaration of Human Rights (right to education) about the administration ’ s refusal to reimburse their costs for school transport of their children by private car. They mainly argued that the trip to school by public transport was unreasonably long and exhausting for the children and not sufficiently safe, such that they were compelled to use a private car.

Invoking Article 6 they complained that the length of the proceedings was unreasonably long.

THE LAW

A. Complaint concerning the reimbursement of transport expenses

15. The applicants relied on Article 26 of the Universal Declaration of Human Rights – right to education – while complaining about the administration ’ s refusal to reimburse their costs for school transport of their children by private car. The Court will examine the complaint under the first sentence of Article 2 of Protocol No. 1, which provides:

“No person shall be denied the right to education.”

16. The Court is aware that Germany has made the following reservation to Article 2 of Protocol No. 1, but considers it not necessary to consider its application to the present case as the application is in any event inadmissible for the reasons set out below. The reservation reads as follows:

“The Federal Republic of Germany adopts the opinion according to which the second sentence of Article 2 of the (First) Protocol entails no obligation on the part of the State to finance schools of a religious or philosophical nature, or to assist in financing such schools ... ”

17 . The Contracting Parties are not obliged under Article 2 of Protocol No. 1 to establish or to subsidise education of any particular type. This provision essentially establishes access to primary and secondary education, although higher education is not necessarily excluded. The right to education might also contain positive obligations (see Leyla Åžahin v Turkey [GC], no. 44774/98, §§ 135, 136, ECHR 2005 ‑ XI) . It cannot be used to derive a right to free transport to the school of one ’ s choice where an alternative is available which would involve free transport and which has not been shown to conflict with the parents ’ convictions (see Cohen v. the United Kingdom, no. 25959/94, Com mission decision of 28 February 1 996).

18 . In the present case, the applicants have not contended that the secondary schooling which was available to them locally was inadequate. They did however wish to send their children to a specific school, outside the catchment area of their local school and, indeed, outside the state of Lower-Saxony where the applicants lived. Their reason for this was that no local schools offered a curriculum which included classical philology.

19 . The Court first notes that the education system in Lower Saxony, far from requiring the applicants ’ children to attend the local school which was maintained by it, permitted them to attend the school of their parents ’ choice. The education system also provided free public transport to that school under certain conditions. Even if in certain circumstances effective access to education may require the provision of transport – which the Court is not required to decide in the present case– the respondent Government, in providing free public transport to the school of the applicants ’ choice, has met its obligation under the first sentence of Article 2 of Protocol no. 1. The fact that the children had over one hour ’ s travel time in each direction is a consequence of the applicants ’ decision to send their children to that particular school, and does not affect the respondent Government ’ s obligation, which is to ensure access to education.

20. As regards the applicants ’ argument that public transport was not sufficiently safe, the Court notes that the domestic courts rejected this argument as unsubstantiated. The applicants have not submitted facts that would compromise the domestic courts ’ assessment of facts.

21. Consequently, the applicants ’ complaint in this regard is manifestly ill-founded and must be rejected in accordance with Ar ticle 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 6 § 1 (length of proceedings)

22. The applicants complained about the length of the proceedings under Article 6 § 1 of the Convention. This provision provides as follows:

“In the determination of his civil rights and obligations, everyone is entitled to a ... hearing within a reasonable time ...”

23. The Court observes that even assuming that the duration of the court proceedings had been protracted in the pertinent case, the complaint in this regard has to be considered as inadmissible for non-exhaustion of domestic remedies, as Germany has introduced a domestic remed y which entered into force on 3 December 2011 to compensate for excessive duration of court proceedings.

24. The Court found in Taron v. Germany ( dec. ) no. 53126/07 , 29 May 2012, that it was appropriate and justified to require even those applicants who had lodged their application with this Court before the entering into force of the Act to avail themselves of the new domestic remedy. Furthermore, the applicant cannot claim that he was not properly aware of the new domestic remedy, see Bandelin v. Germany (dec.), no. 41394/11, 22 January 2013. The Court noted in that case it was the primary task of the applicants to observe national developments relevant to their applications and to react accordingly.

25. In the present case the applicants have not submitted that they lodged a remedy pursuant to the new Act against Excessive Court Proceedings and Criminal Investigations. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

C. Further complaints

26. Given that the applicants ’ complaint under Article 2 Protocol No. 1 has been rejected for being manifestly ill-founded, the Court is of the opinion that also the related further complaints, in particular under Articles 5, 8, 9 and 14 of the Convention, are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Ganna Yudkivska Deputy Registrar President