CONCURRING OPINION OF JUDGE WOJTYCZEK

Translation

1. The reasoning of the present judgment gives rise to at least four reservations.

2. The principle of non-discrimination allows courts a very broad judicial discretion (see the dissenting opinion of Judges Pejchal and Wojtyczek appended to the judgment J.D. and A v. the United Kingdom , nos. 32949/17 and 34614/17, 24 October 2019). That being the case, more detailed case-law standards must be developed to flesh out the non-discrimination principle and guide the action of the national authorities.

Yet the reasoning adopted in the present judgment would appear hesitant as regards the exact content of the applicable standard. In paragraph 62 it sets out the following principle as a legal basis:

“The Court thus considers that Article 14 of the Convention should be interpreted in the light of the requirements set out in the aforementioned texts, particularly the CRPD (see paragraph 26 above). The latter instrument provides that the ‘reasonable accommodation’ which persons with disabilities are entitled to expect are ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case , to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’ (Article 2, see paragraph 26 above), and discrimination on grounds of disability ‘includes all forms of discrimination, including denial of reasonable accommodation’.” (bold added)

In my view, this formulation is based on a proper interpretation of Article 14. In cases concerning the treatment of persons with disabilities, the principles of equality and non-discrimination require States to make the reasonable accommodation which persons with disabilities are entitled to expect; in other words, those principles require necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case. I consider that in the present judgment that standard should have been set out and then consistently used throughout the Court’s reasoning.

However, the reasoning of the judgment includes several references to differently worded standards. Paragraph 66 mentions “attend[ing] primary school under conditions equivalent to those enjoyed by non-disabled pupils.” That approach is more demanding than requiring the implementation of reasonable accommodation. In the case of many disabilities, it is impossible, even with huge financial investment, to guarantee for the children in question conditions equivalent to those enjoyed by non-disabled children.

In paragraph 70, the “equivalent conditions” standard is somewhat qualified, accompanied by a number of reservations: “enable[-ing] her to attend primary school under equivalent conditions, as far as possible, to those enjoyed by other children, without imposing a disproportionate or undue burden on the authorities.”

Paragraph 69 sets out yet another standard: “In the present case, the applicant should have received specialist assistance aimed at promoting her personal autonomy and communication skills and improving her learning process, her relationships with others and her integration at school in order to prevent the risk of marginalisation.” The aim here is not to ensure equivalent conditions, but more modestly, to prevent the risk of marginalisation, and nothing more.

3. The reasoning of the judgment highlights the rights secured to children with disabilities in Italy, emphasising the fact that Italian legislation was not applied in the instant case. Such an approach is controversial because it apparently links the violation of the Convention to a failure to comply with national legislation. Yet the issues of compliance with Article 14 and compliance with national legislation are two different matters. Article 14 can be breached without any violation of national legislation. Conversely, measures may be ruled in conformity with Article 14 while being deemed insufficient from the angle of domestic law.

4. In paragraph 68 the Court expresses its view on issues of “distributive” justice, setting out the following opinion on the distribution of available resources:

“The Court notes that the national authorities had at no stage considered the possibility that the lack of resources or the urgent need to prioritise the treatment of persons suffering from a serious disease could be offset not by tampering with the reasonable accommodation measures guaranteeing equal opportunities for children with disabilities, but by reducing the level of educational provision in a manner divided equitably between the non-disabled and the disabled pupils, even though the Court of Cassation had already stressed that aspect in its judgments (see paragraph 19 above). The Court considers in this regard that, having regard, on the one hand, to the inclusive schooling model adopted in Italy, with a single stream for all pupils, and the other, to the case-law of the Court of Cassation, any budgetary restrictions should affect educational provision in an identical manner for both disabled and non-disabled pupils.”

I find these comments problematic because they concern matters relevant to the management of budgetary resources and comprise specific recommendations on how available resources should be distributed. I think it would be better to refrain from putting forward recommendations in this field and to leave States free to choose the financial methods which they consider most appropriate to guarantee the proper enforcement of their obligations under the Convention. I would point out in this connection that in the judgment Çam v. Turkey (no. 51500/08, § 66, 23 February 2016), the Court emphasised that “it is not its task to define the resources to be implemented in order to meet the educational needs of children with disabilities” (cf. also the judgment in the case of Stoian v. Romania , no. 289/14, § 109, 25 June 2019).

5. The Court also takes a stance on how education should be organised for children with disabilities by expressing the following view:

“It [the Court] further emphasises that those international instruments have recognised inclusive education as the most appropriate means of guaranteeing the aforementioned fundamental principles, as such education is geared to promoting equal opportunities for all, including persons with disabilities (see Çam , cited above, § 64, and the references therein). Inclusive education thus indubitably forms part of the States’ international responsibility in this sphere (see Enver Şahin v. Turkey, no. 23065/12, § 62, 30 January 2018).”

Inclusive education is indubitably the optimum solution for many disabilities. Nevertheless, it does not always enable the specific needs of children suffering from certain types of disability to be taken into account (see, in particular, Dupin v. France , no. 2282/17, 24 January 2019). Some autistic children, in particular, may have special needs in terms of security, tranquillity and acceptance. Scientific research has shown that with such children inclusive education may cause great suffering and be detrimental to their personal development, whereas special schools achieve much better results and can reduce their suffering. Consequently, advocating inclusive education by presenting that approach as the most appropriate solution in general raises questions and prompts reservations.

[1] Autonomy and communication assistants as provided for in section 13 (3) of Law no. 104 of 1992, are tasked under the applicable regulations with “eliminating barriers to perception and sensorial obstacles”, while educational assistants are responsible for supporting pupils with a view to promoting their autonomy and socialisation at school, as back-up to the support teacher. Their objectives include helping pupils with educational and recreational activities. They help them with personal hygiene and in the school canteen. They may accompany them for cultural and educational excursions. They are tasked with providing “basic assistance” for pupils with disabilities.

[2] A support teacher is a teacher specifically trained for dealing with all types of disability.