CEDH · CASELAW;CLIN;ENG — 10 septembre 2020

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Italy - 59751/15 Judgment 10.9.2020 [Section I] Article 14 Discrimination Inability for autistic child to receive specialised learning support to which she was entitled by law, in first two years of primary school: violation Facts – The applicant, a child born in 2004 who suffers from non-verbal autism, was not able to receive, in the first two years of primary school from 2010 to 2012, the specialised assistance to which she was entitled under the relevant legislation. She was thus obliged to pay for private specialised assistance. The administrative courts dismissed her claims. Law – Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1: The scope of Article 14 encompassed not only the prohibition of discrimination on grounds of disability, but also the obligation of States to provide “reasonable accommodation” capable of correcting de facto inequalities that, without having any justification, would result in discrimination. The Italian legal system guaranteed the right to education for children with disabilities in the form of inclusive education within mainstream State schools. A learning-support teacher had to be present in classes integrating children with disabilities and other assistants were foreseen where required by a pupil’s situation. (a)   Refusal to provide specialised assistance to the applicant – At the relevant time, various legislative provisions enshrined the right to education for children with disabilities and their protection against discrimination. By providing for the integration of children with disabilities in mainstream educational institutions, the national legislature had made a choice which fell within its margin of appreciation. In the present case, even though the law provided in the abstract for reasonable “accommodation”, without leaving the administration the slightest latitude in this respect, the competent national bodies had not specified in practical terms how such accommodation was to be implemented from 2010 to 2012, and thus the applicant had not received specialised assistance during that period to meet her specific educational needs. The Court took the view that Article 14 of the Convention had to be interpreted in the light of the requirements set out inter alia in the Convention on the Rights of Persons with Disabilities (CRPD). This instrument provided that the “reasonable accommodation” that persons with disabilities were entitled to expect corresponded to “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden”, that were called for “where needed in a particular case” in order to ensure “the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”; and that discrimination on the basis of disability “include[d] all forms of discrimination, including denial of reasonable accommodation”. Reasonable accommodation measures were intended to correct de facto inequalities. Admittedly, it was not for the Court to define the “reasonable accommodation” to be implemented in the field of education in order to meet the educational needs of persons with disabilities. However, it was important for States to be particularly attentive to their choices in this area given their impact on children with disabilities, whose particular vulnerability could not be overlooked. In the Government’s submission, since the only funds available had been allocated to the needs of sufferers of amyotrophic lateral sclerosis (ALS), the authorities did not have financial resources that could be rapidly allocated to learning support. They had further stated that the school administration had put in place, at its own expense, specialised assistance by school staff. However, they had not provided any information about the specific skills of those staff members or about the assistance provided, nor had they given any details on the periods and hours involved. In addition, the school had spent EUR 476.56 on the services provided by six individuals for one school year. In the light of those explanations, the applicant had consequently been unable to continue to attend primary school in conditions equivalent to those enjoyed by non-disabled pupils, and this difference in treatment was due to her disability. Thus, for two school years, apart from private assistance paid for by the applicant’s parents and a few interventions by school staff, the applicant had not received the specialised assistance to which she was entitled and which should have enabled her to benefit from the school’s educational and social services on an equal basis with the other pupils. (b)   Proceedings before the administrative courts – The administrative courts had taken the view that the lack of financial resources justified the fact that the applicant had not been provided with specialised assistance, without considering whether the authorities had struck a fair balance between her educational needs and the administration’s limited capacity to meet them, or whether her allegations of discrimination were well-founded. In particular, they had not verified whether the budgetary restrictions relied on by the administration had had the same impact on the provision of education for non-disabled children as for children with disabilities. The national authorities had never considered the possibility that the lack of resources or the exceptional need to give priority to the care of individuals suffering from serious conditions could be compensated for, not by a change in reasonable accommodation to ensure equal opportunities for children with disabilities, but by a reduction in the overall provision of education when distributed equally between non-disabled and disabled pupils, even though this aspect had already been emphasised in judgments of the Court of Cassation. In view of the model of inclusive education adopted in Italy, where all pupils were integrated into mainstream classes, and taking account of the case-law of the Court of Cassation, any budgetary restrictions had to have an equivalent impact on the provision of education for disabled and non-disabled pupils alike. (c)   Conclusion – The authorities had not sought to determine the applicant’s real needs or the possible solutions to allow her to attend primary school in conditions that were equivalent as far as possible to those enjoyed by other pupils, whilst not imposing a disproportionate or undue burden on the administration. The discrimination sustained by the applicant had been all the more serious as it had taken place in the context of primary school, where the basics of children’s education and social integration were taught, giving them their first experience of living in a community, this level of education being mandatory in most countries. The Government had failed to show that the authorities had acted with the requisite diligence to guarantee the applicant the enjoyment of her right to education on an equal footing with the other pupils such as to strike a fair balance between the competing interests at stake. Conclusion : violation (unanimously). Article 41: EUR 10,000 for non-pecuniary damage; EUR 2,520 for pecuniary damage. (See Ponomaryovi v. Bulgaria , 5335/05, 21   June 2011, Information Note 142 ; Çam v. Turkey , 51500/08, 23   February 2016, Information Note 193 ; Şanlısoy v. Turkey (dec.), 77023/12 , 8   November 2016; Enver Şahin v. Turkey , 23065/12, 30   January 2018, Information Note 214 ; Stoian v.   Romania , 289/14 , 25   June 2019. See also Article   15 of the European Social Charter (Revised) and Recommendation Rec(2006)5 of the Committee of Ministers on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, adopted on 5   April 2006)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes