CASE OF PONOMARYOVI v. BULGARIA
Violation of Art. 14+P1-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
9. The first applicant, Mr Anatoliy Ponomaryov, was born on 15 June 1986 in Kustanay, in the Kazakh Soviet Socialist Republic (now the Republic of Kazakhstan). His brother, the second applicant, Mr Vitaliy Ponomaryov, was also born there on 6 June 1988. In 1990 the two moved to Moscow, the Russian Federation, with their mother, Mrs A.P., a Russian national. In 1992 their mother divorced their father, Mr V.P., also a Russian national. The whereabouts of the latter remain unclear; it appears that he might have settled in another country, probably Germany. It also seems that the applicants have not kept any contact with their father since the divorce. 10. On 6 August 1993 the applicants’ mother married a Bulgarian national. In 1994 the family settled in Pazardzhik, Bulgaria. The applicants’ mother was then granted a permanent residence permit on the basis of her marriage to a Bulgarian national and the applicants were entitled to reside in Bulgaria on the basis of their mother’s permit. 11. In 1994 the applicants enrolled in a Bulgarian primary school, and later in secondary schools. Both of them apparently speak fluent Bulgarian. 12. Their mother has been out of work since 1998. Her husband owned a small Internet café business, which was apparently shut down by the authorities in 2005. 13. On 15 June 2004 Mr Anatoliy Ponomaryov turned 18, and accordingly had to obtain an independent permit in order to continue residing in Bulgaria lawfully. In September 2004 he contacted the immigration authorities and was informed that, to obtain a permanent residence permit, he first had to leave Bulgaria, obtain a special visa from a Bulgarian embassy abroad, return to the country and apply for a temporary residence permit; only then could he apply for a permanent residence permit. 14. On 28 September 2004 the consular department of the Ministry of Foreign Affairs informed Mr Anatoliy Ponomaryov that it would not insist on his leaving the country to obtain a special visa and that he could get one in Bulgaria. The applicant then applied for a permanent residence permit. However, as he was unable to raise the money needed to pay the requisite fees (amounting in total to slightly over 1,300 Bulgarian levs (BGN)), the immigration authorities returned his application on 22 February 2005 without considering it. 15. In October 2005 both applicants, asserting that they had no property or income, asked the Commission for the Remission of Uncollectible State Debts, established by the President of the Republic, to waive the fees in respect of both of them. On 31 May 2006 the Commission rejected their requests, stating that their debts did not appear to be uncollectible. 16. In the meantime, on 17 February and 8 March 2006, the immigration authorities informed the applicants that they had been granted permanent residence permits and invited them to collect them. On 11 May 2006 the applicants paid the requisite fees and obtained documents certifying that they had permanent residence permits. Mr Anatoliy Ponomaryov paid a total amount of BGN 1,375.26 and Mr Vitaliy Ponomaryov a total amount of BGN 1,415.26. They managed to raise the money by taking out a bank loan. 17. On 9 February 2005, when Mr Anatoliy Ponomaryov was in the final year of his secondary education, the head of the Regional Education Inspectorate of the Ministry of Education wrote to the head teacher of his school, inquiring whether the applicant had paid the school fees which he owed as an alien without a permanent residence permit and, if not, whether any measures had been taken to collect them. Two and a half months later, on 26 April 2005, the Education Inspectorate in Pazardzhik held a meeting with the head teacher. At that meeting, attended also by representatives of the immigration authorities, a discussion took place as to whether steps should be taken to enforce section 4(3) of the additional provisions of the 1991 National Education Act (see paragraph 32 below) in respect of the applicant. 18. On 28 April 2005 the head teacher ordered the applicant to pay 800 euros (EUR) in fees, failing which he would be barred from attending classes and would not be issued with a certificate for having completed the school year. She relied on a decision of the Minister of Education of 20 July 2004 laying down the fees payable by aliens schooled in Bulgarian educational establishments under the above-mentioned section 4(3). 19. The applicant sought judicial review of the head teacher’s order. On 5 July 2005 the Pazardzhik Regional Court partly quashed and partly upheld the order. It found that there was no indication that the applicant had a permanent residence permit. He could therefore pursue his studies only if he paid the requisite fees. However, the fact that he had not paid them did not mean that he should not be issued with a certificate for having completed the previous school year, given that the amount could still be recovered from him. That part of the order was therefore unlawful. 20. Both the applicant and the head teacher appealed. On 13 June 2006 the Supreme Administrative Court upheld the lower court’s judgment (реш. № 6381 от 13 юни 2006 г. по адм. д. № 10496/2005 г., ВАС, V о.). It fully agreed with its reasoning, and added that the fact that in the meantime the first applicant had been granted a permanent residence permit (see paragraph 16 above) meant solely that he could attend a Bulgarian school free of charge in the future. However, as at the relevant time he had not had permanent resident status, he had been obliged to pay the requisite fees. Concerning the issuance of a certificate for completion of the corresponding school year, the lower court’s ruling had been correct, as payment of the fees was a precondition for attending classes but failure to pay could not serve as grounds for refusing to award a certificate if the individual concerned had already completed the year. 21. Apparently, the applicant’s school did not in practice prevent him from attending classes, but the issuance of his secondary school diploma was delayed by about two years, which in turn delayed his enrolment in university. 22. Separately, Mr Anatoliy Ponomaryov sought review of the Minister’s fee-setting decision of 20 July 2004 (see paragraph 18 above). He argued, inter alia, that it was discriminatory to require aliens to pay fees to attend Bulgarian schools. 23. On 10 January 2006 a three-member panel of the Supreme Administrative Court dismissed the application (реш. № 349 от 10 януари 2006 г. по адм. д. № 5034/2005 г., ВАС, V о.). It found, inter alia, that privileges granted on the basis of nationality were commonplace in many countries. Moreover, Article 14 of the Convention did not expressly prohibit discrimination on such grounds. If envisaged by a statute or an international treaty, the differential treatment of individuals on the basis of their nationality did not amount to discrimination. Moreover, aliens having permanent residence permits did not have to pay school fees. However, the applicant had not shown that he had such a permit. 24. On an appeal by the applicant, a five-member panel of the Supreme Administrative Court upheld the lower court’s judgment on 13 June 2006 (реш. № 6391 от 13 юни 2006 г. по адм. д. № 2249/2006 г., ВАС, петчленен св), fully concurring with its reasoning. 25. On 31 October 2005, when Mr Vitaliy Ponomaryov was in the penultimate year of his secondary education, the head teacher of his school ordered him to pay EUR 1,300 in fees, failing which he would be barred from attending classes and would not be issued with a certificate for having completed the school year. 26. The applicant sought judicial review of this order, arguing, inter alia, that it infringed his rights under the Convention. On 4 April 2006 the Pazardzhik Regional Court dismissed his application. It found no indication that the applicant had a permanent residence permit or that a procedure for obtaining such a permit was under way. He could therefore pursue his studies only if he paid the requisite fees. This did not infringe his right to education, as aliens could attend Bulgarian schools provided they paid the requisite fees. 27. The applicant appealed. On 13 December 2006 the Supreme Administrative Court upheld the lower court’s judgment (реш. № 12503 от 13 декември 2006 г. по адм. д. № 6371/2006 г., ВАС, V о.). It noted that, since the applicant had in the meantime been granted a permanent residence permit (see paragraph 16 above), he could attend a Bulgarian school free of charge in the future. However, as at the relevant time he had not had permanent resident status, he had been obliged to pay the requisite fees. 28. On 20 March 2007 the head teacher of the applicant’s school invited him to pay EUR 1,300 in respect of his schooling during the 2004/05 school year and the same amount in respect of his schooling during the 2005/06 school year. 29. It seems that the applicant was in practice not barred from attending classes throughout the period 2004/06. He submitted that he had been prevented from doing so for certain periods of time, but the court examining a civil claim by his school against him (see paragraph 30 below) found, after reviewing the available evidence in this respect, that he had attended school without interruption during that period. 30. On 6 June 2007 the applicant’s school brought a claim against him, seeking payment of the fees due. In a judgment of 18 February 2008, the Pazardzhik District Court allowed the claim and ordered the applicant to pay his school EUR 2,600 plus interest. It found that the applicant owed this amount because at the relevant time he had not had a permanent residence permit entitling him to be schooled free of charge. Following an appeal by the applicant, on 7 May 2008 the Pazardzhik Regional Court quashed the lower court’s judgment and dismissed the claim. The school appealed on points of law. On 25 November 2008 the Supreme Court of Cassation accepted the appeal for examination, and in a judgment of 29 April 2010 (реш. № 1012 от 29 април 2010 г. по гр. д. № 3446/2008 г., ВКС, І г. о.), quashed the Pazardzhik Regional Court’s judgment and allowed the claim, ordering the applicant to pay the school the equivalent of EUR 2,600 plus interest (the total sum came to BGN 6,394.45), and BGN 350 for costs. It observed, inter alia, that the requirement for certain categories of aliens to pay school fees stemmed directly from the applicable law. 31. The relevant provisions of the 1991 Constitution read as follows: “Aliens residing in the Republic of Bulgaria shall have all rights and obligations flowing from this Constitution except those rights and obligations in respect of which the Constitution and the laws require Bulgarian nationality.” “1. Everyone shall have the right to education. 2. School education up to the age of 16 years shall be compulsory. 3. Primary and secondary education in State and municipal schools shall be free of charge. Education in higher educational establishments run by the State shall be free of charge under the conditions set out in the law. ...” 32. Under section 6 of the 1991 National Education Act (Закон за народната просвета), education in State and municipal schools is free of charge. Section 4(1) of the additional provisions of the Act allows all aliens to enrol in Bulgarian schools. Their education is also free of charge if they: (a) have a permanent residence permit (section 4(2), as originally enacted in 1991); (b) have been enrolled following a decision of the Council of Ministers or under intergovernmental agreements so providing (the same provision, as amended in 1998); or (c) are of compulsory school age (under 16), and their parents work in Bulgaria and are nationals either of a member State of the European Union or the European Economic Area, or of Switzerland (the same provision, as amended in May 2006; the amendment was intended to implement in Bulgarian law the provisions of Council Directive 77/486/EEC of 25 July 1977 on the education of the children of migrant workers, and came into force on the day of Bulgaria’s accession to the European Union, namely 1 January 2007). Aliens who do not fall into any of these categories must pay fees in amounts fixed by the Minister of Education. The proceeds from these fees are to be used exclusively for the needs of the educational establishments where the persons concerned are being schooled (section 4(3), as amended in 1998). 33. The relevant parts of Articles 2 § 1 and 28 § 1 of the 1989 United Nations Convention on the Rights of the Child (ratified by Bulgaria on 3 June 1991) read as follows: “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” “States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; ...” 34. Article 13 of the International Covenant on Economic, Social and Cultural Rights (ratified by Bulgaria on 21 September 1970) reads as follows: “1. The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognise that, with a view to achieving the full realisation of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. ...” 35. Article 17 of the revised European Social Charter (which Bulgaria ratified on 7 June 2000, accepting sixtytwo of its ninetyeight paragraphs, including Article 17 § 2 below) reads, in its relevant parts, as follows: “With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in cooperation with public and private organisations, to take all appropriate and necessary measures designed: ... 2. to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools.” 36. On the basis of the materials available to the Court in respect of twentysix member States of the Council of Europe, it appears that in seventeen States (Belgium, Cyprus, the Czech Republic, Estonia, France, Germany, Italy, Latvia, Luxembourg, the Netherlands, Portugal, Russia, Slovenia, Spain, Switzerland, “the former Yugoslav Republic of Macedonia” and the United Kingdom), primary and secondary education is free of charge and accessible to all persons living or residing in the country regardless of their immigration status or that of their parents. Certain categories of aliens are required to pay fees for their primary and secondary schooling in Malta, and only for their upper secondary schooling in Denmark, Poland and Romania. In five States (Croatia, Monaco, Slovakia, Turkey and Ukraine), certain non-nationals may experience difficulties in enrolling in schools because of their irregular status. 37. The length of compulsory education varies between member States, from eight years at the bottom end of the spectrum to thirteen years at the top end. In eleven States compulsory schooling lasts for eight or nine years, in ten States it lasts for ten or eleven years, and in five States it lasts for twelve or thirteen years. However, it is possible to say that in the great majority of the twenty-six States surveyed, compulsory education encompasses primary and lower secondary education, with the pupil usually finishing compulsory education aged approximately 16. This is generally the case for the first two groups, which together comprise twenty-one States. The number of years differs in each State depending on what age compulsory education begins rather than ends. Upper secondary education is compulsory only in a minority of the States surveyed (Belgium, Luxembourg, Portugal, “the former Yugoslav Republic of Macedonia” and Ukraine). 38. The Spanish Constitutional Court has dealt with the issue of the right to post-compulsory education for non-resident aliens. A Spanish statute governing the rights and freedoms of aliens and their social integration excluded non-resident aliens from the right to post-compulsory education. The Constitutional Court, in judgment no. 236/2007 of 7 November 2007, declared that exclusion unconstitutional since it prevented undocumented or non-resident minors from having access to post-compulsory education. The court held that whether or not the minors were lawfully resident was not a criterion for granting the right to post-compulsory education, which was part of the right to education protected by Article 27 of the Spanish Constitution. It observed that the right to education was not limited to basic education and that it also applied to subsequent, post-compulsory education. The court referred to Article 2 of Protocol No. 1 and to the fact that, in accordance with Article 1 of the Convention, the former applied ratione personae to any “person”, including non-resident or illegal aliens. 39. In 1982, in the case of Plyler v. Doe (457 U.S. 202), in which immigrant children in the State of Texas complained that they had been deprived of the right to free education on account of their undocumented status, the Supreme Court of the United States held, by five votes to four, that the requirement for illegal aliens – as opposed to nationals and lawfully resident aliens – to pay school fees deprived them of the equal protection of the laws, contrary to the Fourteenth Amendment to the Constitution of the United States. 40. In Resolution 1509 (2006), adopted on 27 June 2006 and entitled “Human rights of irregular migrants”, the Parliamentary Assembly of the Council of Europe expressed the view that “all children have a right to education, extending to primary school and secondary school levels, in those countries where such schooling is compulsory. Education should reflect their culture and language and they should be entitled to recognition, including through certification, of the standards achieved” (point 13.6). 41. Data published by the United Nations Department of Economic and Social Affairs, Population Division shows that in 2010 there were 107,245 immigrants in Bulgaria, accounting for 1.4% of the population. According to the same source, the annual rate of change of the migrant stock in Bulgaria between 2000 and 2010 was 0.6%. 42. Data published by the International Organisation for Migration show that in 2006 in Bulgaria there were 55,684 aliens with permanent residence permits. According to the same source, the number of aliens apprehended as illegally present in the country was as follows: 400 in 2002, 454 in 2003, 877 in 2004 and 1,190 in 2005. 43. According to data published by the National Statistical Institute of Bulgaria, the number of students in upper secondary education during the period 2003/10 was as follows: 166,995 during the 2003/04 school year; 170,482 during the 2004/05 school year; 170,462 during the 2005/06 school year; 167,988 during the 2006/07 school year; 163,050 during the 2007/08 school year; 156,978 during the 2008/09 school year; and 148,627 during the 2009/10 school year. The vast majority of them (all but about 3,500 a year) were enrolled in public schools. No data appear to be available as to how many of those students were not Bulgarian nationals or as to their immigration status. By contrast, data exist on the nationality of students in higher education establishments (universities and equivalent). The number of Bulgarian and foreign students in such establishments during the period 2003/10 were as follows: 215,682 Bulgarians and 7,952 foreigners during the 2003/04 school year; 224,530 Bulgarians and 8,300 foreigners during the 2004/05 school year; 229,649 Bulgarians and 8,652 foreigners during the 2005/06 school year; 244,816 Bulgarians and 9,060 foreigners during the 2006/07 school year; 251,000 Bulgarians and 9,110 foreigners during the 2007/08 school year; 260,826 Bulgarians and 9,472 foreigners during the 2008/09 school year; and 273,202 Bulgarians and 10,034 foreigners during the 2009/10 school year.