B Explanatory memorandum
by Ms Quintanilla, rapporteur
of reference and stages in the preparation of the report
On 12 March 2010, a motion
for a resolution on “Families’ freedom of choice in education in
each member State”, presented by Mr Luca Volontè and others (Doc. 12061
), was submitted to the Committee on Culture, Science
and Education. Ms Blanca Fernández-Capel Baños was appointed rapporteur
in April 2010. After she left the Assembly, the Committee on Culture,
Science, Education and Media appointed me in January 2012.
2. Pierre-Henri Imbert, former Director General of Human Rights
at the Council of Europe, agreed to assist the committee in the
preparation of this report. I wish to thank him warmly for his input.
3. The committee decided to change the title of the report for
the first time in February 2011 and to send the Council of Europe
member States a questionnaire to gather information on the protection
and implementation of families’ right to freedom of choice in education
in their respective legal systems. The questionnaire was sent through
the agency of the European Centre for Parliamentary Research and Documentation
(ECPRD). Some 37 States, including 34 member States sent in replies:
the analysis in the report therefore has a sound basis in comparative
law. In April 2012, the committee decided to give the report its
to be addressed and scope of the survey
4. In the motion for resolution,
it was pointed out firstly that “the right of every person to be
educated implies introducing true freedom of education, so that
each family … may choose its school on the basis of its beliefs”. The
motion goes on to note that “[s]ome of the school systems in several
member States continue to operate according to a centralised model,
whereby the State maintains a monopoly on education to the exclusion
of the family as a decision-making force in the educational process”.
It is therefore necessary to “accept and sustain real freedom of
choice in education to enable genuine pluralism in schooling” but
also to bring about an improvement in the education system by encouraging
competition between schools. The motion concludes by inviting the
Parliamentary Assembly to monitor “compliance of the right to effective
and non-discriminatory education and freedom of families and children
to choose between State and non-State schools”.
5. This report is mainly focused on this aspect of “freedom of
choice in education”. This freedom of choice can also be expressed
through the choice of home schooling; however, this other aspect
(which raises issues distinct from those related to the right to
choose between public and private educational establishments) is
not dealt with in this report.
Similarly, this report does not look into parents’ other rights
in education, which complement the right to freedom of choice in
- the right
of appeal, which offers parents the possibility of expressing their
opposition to certain decisions taken by the school authorities;
- the right to information, especially concerning their
children’s progress, the organisation of the education system in
general, and that of the school in particular;
- the right of parents to participate in organised formal
structures of the education system.
7. To verify “the effective and non-discriminatory respect of
the right of families and children to a free choice between public
and private schooling”, this analysis will take as its starting
point the European legal framework and then go on to consider the
national legal systems.
8. As regards the European legal framework, two instruments of
the Council of Europe are particularly important: the European Convention
on Human Rights (ETS No. 5, “the Convention”) (as interpreted and implemented
according to the case law of the European Court of Human Rights
(“the Court”)) and the European Social Charter (revised) (ETS No.
163). The European Union’s Charter of Fundamental Rights supplements
them. The report studies the relevant provisions contained in these
texts. The Charter of Fundamental Rights is only directly applicable
to European Union member States, of course, but to my mind it cannot
easily be ignored.
When it comes to assessing national standards and arrangements,
the report looks in particular at whether, and to what extent, member
States’ legal systems make provision for the following:
- the right for private entities
to establish educational establishments which (subject to certain
incorporated in the national education system as providing a “public
service”. This also means that studies performed in these institutions
and, where appropriate, the certificates/diplomas awarded by these
establishments are officially recognised;
- the possibility for these establishments to cater to the
specific needs of families, while at the same time complying with
the terms and conditions governing schools established by the State
- the possibility for the State to provide financial support
for these establishments (possibly subject to further conditions,
in addition to those that applied to their creation) and/or for
families who decide to send their children there.
10. It should be pointed out that families’ specific needs are
most often couched in terms of religious education; but it may equally
be that people wish to send their children to a particular school
because of its teaching methods or its focus on a particular area
(arts, languages, life sciences, technology, etc.). In other words,
one may not consider that freedom to choose a school be simply the
freedom to choose a “faith-based” school, although in practice this
is the most important aspect.
11. It should further be noted that educational choice can only
be exercised fully in a system guaranteeing the right to education,
or even the right to quality education for all, without discrimination,
which makes it possible to acquire a broad knowledge and prepares
for entry into the labour market, but is also aimed at personal
development and at preparing children for life as active citizens
in a democratic society by instilling basic values in them. For
this reason, the issue of State funding (direct or indirect; total
or partial) for non-State schools is examined with due regard for
the impact that the principle of free compulsory education and non-discrimination
might have in this respect.
2 Legal implications of the right to
freedom of choice in education in European law
12. A number of international instruments
contain provisions on the right to education. Many of them are universal
in scope: the Universal Declaration of Human Rights (10 December
1948, Article 26); Convention against Discrimination in Education
(14 December 1960); International Covenant on Economic, Social and Cultural
Rights (16 December 1966, Articles 13 and 14); and the Convention
on the Rights of the Child (20 November 1989, Articles 28 and 29).
For Council of Europe member States, however, it is clear that the
key instrument is the European Convention on Human Rights, and more
specifically its first Additional Protocol (ETS No. 9) (20 March
1952), to which may be added the European Social Charter (18 October
1961 (ETS No. 35) and 3 May 1996) and the Charter of Fundamental
Rights of the European Union.
Additional Protocol to the European Convention on Human Rights
Article 2 of the Additional
Protocol to the European Convention on Human Rights reads as follows:
2. Right to education
No person shall be denied the
right to education. In the exercise of any functions which it assumes
in relation to education and to teaching, the State shall respect
the right of parents to ensure such education and teaching in conformity
with their own religious and philosophical convictions.”
14. From the lively and at times confusing debates to which the
drafting of this article gave rise, at least one clear point emerged,
which is of direct relevance to the subject that concerns us here:
“[t]he duty of the State to establish or to support out of public
funds, in whole or in part, schools corresponding to the various
trends of opinion in the population … should be considered as being
entirely outside the scope of the Convention or the Protocol” (Report
by the Committee on Legal and Administrative Questions, 2 October
15. This interpretation was endorsed by the Court in one of its
first judgments (“the Belgian linguistic case”, 23 July 1968): “[t]he
negative formulation [of the first sentence of Article 2] indicates,
as is confirmed by the ‘preparatory work’ …, that the Contracting
Parties do not recognise such a right to education as would require them
to establish at their own expense, or to subsidise, education of
any particular type or at any particular level” (paragraph 3). This
finding carries all the more weight because it was not strictly
necessary considering the object of the application. To our knowledge,
there has been only one case directly related to State funding for
a private institution (a Rudolf Steiner school): the application
in W. and K.L. v. Sweden,
which was declared inadmissible by the Commission (decision of 11
December 1985). Drawing on the aforementioned Court judgment, the
Commission held that, with regard to Article 2 of the First Protocol,
“States are not obliged to subsidise a particular form of education
in order to respect the religious and philosophical convictions
of parents: it is sufficient that they respect the said convictions
within the existing and developing system of education.”
16. It follows from this case law that States may choose to contribute
financially to the running of private educational establishments.
But they have no legal obligation to do so under the Convention.
17. However, it should be noted that, despite the negative wording
of the first sentence of Article 2 of the Additional Protocol to
the Convention (“No person shall be denied the right to education”),
in its judgment in “the Belgian linguistic case”, the Court held
that this sentence embodies a genuine right (paragraph 3). In its judgment
of 7 December 1976 in Kjeldsen and Others
v. Denmark, it confirmed that this sentence “enshrines the
right of everyone to education”, and went on to state that “it is
on to this fundamental right that is grafted the right of parents
to respect for their religious and philosophical convictions, and
the first sentence does not distinguish, any more than the second,
between State and private teaching …” (paragraph 50).
European Social Charter (revised)
The European Social Charter
contains several provisions that relate directly or indirectly to
education: Articles 9, 10, 15 and in particular Article 17, which
has been completely rewritten in the revised version of the Charter.
Under this article, “the Parties undertake, either directly or in
co-operation with public and private organisations, to take all
appropriate and necessary measures designed:
18.1 (a) to ensure that children and young persons, taking
account of the rights and duties of their parents, have the care,
the assistance, the education and the training they need, in particular
by providing for the establishment or maintenance of institutions
and services sufficient and adequate for this purpose; …
18.2 to provide to children and young persons a free primary
and secondary education as well as to encourage regular attendance
19. The reference to “parents’ rights [and duties]” linked with
the obligation to secure to children and adolescents “the education
… which they need” and “free primary and secondary education” could
afford a basis for more advanced protection of parents’ right to
freedom of choice in education than what is currently offered by
the Additional Protocol to the European Convention on Human Rights.
However, according to the information that we have been able to
gather, the European Committee of Social Rights has not had the opportunity
to address the issues discussed in this report.
Charter of Fundamental Rights of the European Union
The Charter of Fundamental
Rights of the European Union contains the following article:
14 – Right to education
1. Everyone has the right to
education and to have access to vocational and continuing training.
2. This right includes the
possibility to receive free compulsory education.
3. The freedom to found educational
establishments with due respect for democratic principles and the
right of parents to ensure the education and teaching of their children
in conformity with their religious, philosophical and pedagogical
convictions shall be respected, in accordance with the national laws
governing the exercise of such freedom and right.”
21. This provision makes the same basic points as Article 2 of
the Protocol to the European Convention on Human Rights but in a
more comprehensive and robust form. This is especially true of the
positive, rather than negative, wording of the right to education,
which is clearly recognised. This change marks an important shift because
the negative wording has been used by the European Court of Human
Rights as an argument to avoid the obligation to contribute to the
funding of private establishments.
22. It will also be noted that the Charter of Fundamental Rights
further establishes the principle that compulsory education should
be free of charge. In the accompanying “Explanation”, however, it
is pointed out that “[a]s it is worded, the latter principle merely
implies that as regards compulsory education, each child has the
possibility of attending an establishment which offers free education.
It does not require all establishments which provide education,
in particular private ones, to be free of charge.”
23. The last point to note is that the Charter recognises the
freedom to found educational establishments. The “Explanation”,
however, merely states that such freedom “is guaranteed as one of
the aspects of freedom to conduct a business”.
24. To round off this survey of
the pertinent law as it stands at present, three principles, which
are of particular importance here, bear examination: pluralism,
non-discrimination and respect for the rights of the child.
25. Clearly, having private educational
establishments operate alongside State establishments contributes to
pluralism. It is important to be aware, however, that this kind
of pluralism (arising from the diversity of establishments) is not
what the authors of the Convention had in mind, nor indeed what
is being referred to by the Court. The basic idea is that democratic
systems need to be protected against any totalitarian threat by preventing
the indoctrination of young people. Hence, the need to ensure and
preserve pluralism within State establishments, in particular by
respecting parents’ religious and philosophical convictions.
26. In its judgment in Kjeldsen and
Others v. Denmark, the Court clearly stated that: “The
second sentence of Article 2 [of the Additional Protocol] aims in
short at safeguarding the possibility of pluralism in education which
possibility is essential for the preservation of the ‘democratic
society’ as conceived by the Convention. In view of the power of
the modern State, it is above all through State teaching that this
aim must be realised” (paragraph 50).
27. This assertion prompts a definition of the Court’s position
regarding the question of pluralism in education. In line with the
concerns of the drafters of Article 2 of the Additional Protocol,
the Court chiefly emphasises the need to preserve pluralism in State
schools, so as to prevent the indoctrination of youth. But this
does not mean that it disregards the importance – for true pluralism
– of the existence of private schools. On the contrary, the possibility
of their creation is implicit in the State’s respect for the convictions
28. The principle of non-discrimination
was bolstered by Protocol No. 12 to the European Convention on Human
Rights (ETS No. 177), since it provides for the collective enforcement
of a general prohibition (rather than simply of the rights and freedoms
enshrined in the Convention) of discrimination. Now it is “the enjoyment of
any right set forth by law” that must be secured “without discrimination
on any ground”.
29. This principle applies first and foremost to institutions
under the control of the State; in particular, the entrance requirements
of these institutions must not give rise to any discrimination.
Likewise, if a State decides to contribute to the running of private
establishments, it cannot choose those establishments in an arbitrary manner
but must do so on the basis of general rules that apply without
discrimination to all prospective establishments. Does that mean,
however, that a State is being discriminatory if it does not help
any private establishments at all?
30. In the light of the legal considerations set out above, this
question remains open. Ever since the European Union’s Charter of
Fundamental Rights set out clear provisions in this regard, States
should not be able to oppose the setting up of private establishments
(subject of course to certain conditions). But this “freedom to
conduct a business” does not in itself imply a right to receive
assistance from the State (in a number of sectors, State enterprises
often exist alongside private enterprises which receive no subsidies).
Conversely, it could be argued that the right to education which
the Court has described as a “fundamental right” is of very special
nature and that, through their participation, private establishments
help to perform a vital public task, in the same way that State
for the rights of the child
31. It should finally be mentioned
that parents’ freedom of choice in education is to be joined with
the rights secured to the child itself, which the State has a duty
32. This aspect does not seem to be directly contemplated by the
second sentence of Article 2 of the Additional Protocol to the European
Convention on Human Rights, which simply lays down the obligation
of the State to respect parents’ religious and philosophical convictions.
It can in fact be noted that in the Court’s view, it is the importance
of the State’s respect for parents’ convictions which affords them
the possibility of placing their children in private schools (see
for example the decision of 25 May 2000, A.J.
Alonso and P.J. Merino v. Spain).
Nonetheless, in the “Explanation” accompanying Article 14
of the Charter of Fundamental Rights, it is stated that “[r]egarding
the right of parents, it must be interpreted in conjunction with
the provisions of Article 24”. This article deals with “[t]he rights
of the child”. Paragraph 2 provides that: “[i]n all actions relating
to children, whether taken by public authorities or private institutions,
the child's best interests must be a primary consideration”.Note
are called upon to ensure effective protection of these best interests
of the child, at the same time as being required to respect the
responsibility, right and duty of parents to provide direction to
and actuation of the right to freedom of choice in education in
the legal systems of the Council of Europe States
34. The analysis of comparative
law in this chapter relies essentially on the replies to the questionnaire
from 34 member States, namely: Albania, Andorra, Austria, Belgium,
Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Georgia, Germany, Greece, Hungary, Iceland, Italy, Lithuania, Republic
of Moldova, Montenegro, Norway, Poland, Portugal, Romania, Russia,
Serbia, Slovakia, Spain, Sweden, Switzerland, “the former Yugoslav
Republic of Macedonia”, Turkey, United Kingdom (England) and Ukraine.
Canada, the United States and Israel also supplied information.
For a better understanding of the situation in some countries,
I also consulted the national reports of the Eurydice network on
and the national reports on relations
between the State and religion published in connection with the
18th International Congress of Comparative Law in Washington (July
The main information items are presented
schematically in a separate document (AS/Cult/Inf (2012) 02 revNote
a commentary on them is given in the following sections.
to open private schools and recognition of education in them
basis of the right to freedom of choice in education
36. All countries that replied
to the questionnaire in some way recognise the right to freedom
of choice in education. In 28 member States of the Council of Europe,
this right has a constitutional embodiment. Sometimes recognition
is indirect (as is the case in Sweden, through references to the
norms of the European Convention on Human Rights) or implicit. In
that respect, the mere fact of mentioning the possibility for individuals
or entities governed by private law to found private schools presupposes
the possibility for families to place their children in these schools.
Everywhere, law determines the conditions and modalities of implementation
of the right to establish private educational institutions.
stipulated for setting up private schools
37. All countries that answered
the questionnaire provide the possibility of creating private teaching establishments
at all levels of education (primary, secondary and higher). Only
Greece prohibits by a constitutional provision the creation of private
In a majority of States, an applicant for the opening of a
private school must lodge a request for permission with the administration.
The granting of such permission is, in almost all cases, subject
to one or more of the following conditions:
- Compatibility with the syllabus and/or goals of national
education; this requirement presupposes that the course content
and the number of teaching hours are not necessarily identical to,
but are compatible with, what is laid down in the country’s public
- Financial capability and stipulations concerning premises;
this concerns conformity to the stipulations made by national legislation
and regulations in terms (particularly but not exclusively) of the
owners’ solvency, suitability of premises, safety and quality of
fittings and equipment, etc.
- Teachers’ academic and/or professional ability; this condition
concerns the specific qualifications or diplomas and/or the professional
proficiencies which the staff of the future school must possess.
Other conditions are sometimes laid down, such as:
- specific educational provision,
that is the need for the school to display specificity as to the
content or the form of its teaching: foreign language, religious
instruction, particular educational approach, etc;
- an obligation not to distinguish between pupils according
to the parents’ financial circumstances.
40. In three countries (Belgium, France and Italy), prior permission
is not required to set up a private school.
of recognition of the education and diplomas provided by a private
41. In all the countries that answered
the questionnaire, there is a possibility for recognising the education and,
if necessary, diplomas provided in private schools, subject to the
fulfilment of certain conditions. If these are fulfilled, the school
is “recognised” or “accredited” by the State.
42. Accreditation is not a mandatory procedure in all cases. However,
non-accredited private schools are rare. Indeed, besides recognising
the value of the education undergone in private schools, accreditation
is in general a condition sine qua non of
eligibility for public financial support.
43. In some systems, permission and accreditation constitute one
and the same procedure or they are strictly consecutive. These systems
are of interest from the procedural standpoint, having the advantage
of simplicity in obviating bureaucratic clutter which could have
a restrictive effect.
44. In almost all countries, accreditation is granted (logically)
after assessment of the teaching syllabus prescribed by the private
school; most of the time other conditions are added, resuming or
completing those required to create the school. This is the case
also in the three countries (Belgium, France, Italy) which do not require
permission to be obtained in order to establish a private school.
In general, the conditions to be met are identical or equivalent
to those applicable to educational institutions founded by the State
or public authorities.
45. It should be noted that in most countries, accreditation of
higher education establishments is conducted in the same way whether
the establishment comes under public or private law. It is founded
essentially on an assessment of the quality of the training proposed.
regarding the funding of private schools and controls applied to
funding of private schools
Ten member States (Albania,
Andorra, Croatia, Cyprus, Georgia, Greece, Russia, Serbia, “the
former Yugoslav Republic of Macedonia”, Ukraine) provide for no
public funding of private schools. In the others, the assistance
which private schools may receive takes very diverse forms. The
administration may provide:
grants (freely allocated by the recipient to its different items
of expenditure) often determined according to a standard cost per
pupil and the number of pupils enrolled in the school;
- specific grants (to be allocated to the items of expenditure
prescribed by the regulations);
- tax relief.
47. The State may also directly defray certain expenditure (and
directly pay the private school’s “creditors” the sums owing). This
is the solution chosen in France for the remuneration of the teachers
and certain other operating costs.
48. It can be noted that in various countries the cost that the
State accepts to pay for the pupils of a private school is equivalent
or virtually equivalent to that borne for State school pupils, in
accordance with the principle of non-discrimination.
49. For example, in Finland, authorised private schools are funded
by central and local government on the same basis as State schools.
In Sweden, local authorities fund the independent schools by applying
the same criteria as for the funding of municipal schools (mainly,
a certain amount per student). In Spain, private schools that fulfil
all normative standards and which offer free education can receive
public funding. In these cases, an agreement is signed with the
competent education authority: these private schools thus enter
the public education service system and are funded by the budgets
of the State or the autonomous communities on the same basis as
State schools. In the Slovak Republic, State financial support is
provided for infrastructures (since January 2007) as well as the
operation of private or denominational schools; the funding system
has as an objective, among others, to introduce a standardised system
of funding per student and to support equality between the various
50. In other countries, the public funding which private schools
receive per pupil nears, or takes account of, the financial cost
of a pupil attending a State school. In Germany, the Länder provide minimum financial
support to private educational institutions. These grants generally
cover operating costs (staff, equipment) and sometimes other costs
(construction, free school supplies for students); overall public
funding received by these institutions per student is equivalent
to the financial cost of a student attending a State school. In Belgium,
the accreditation of the institution automatically gives right to
specific grants for a given expenditure position: personnel, equipment
and construction; in addition to these grants, accredited institutions
can benefit from certain services and facilities, which the public
educational establishments have a right to (such as canteens and
swimming pools). In Denmark, the annual financing (calculated on
the basis of the number of students) covers operating costs and
it corresponds, in principle, to the cost covered for students in
municipal schools minus registration fees paid by families. Indeed,
schools must in part be self-financing.
51. Nevertheless, it should be noted that in many member States
of the Council of Europe, the funding of private institutions is
either non-existent or remains at a low level.
of eligibility for public funding
In a majority of the countries
that provide for financial support to private schools, accreditation
qualifies them to receive it. Among the other conditions (additional
or alternative to accreditation), the following should be mentioned:
- the non-profit-making nature
of the school;
- the absence of discriminatory selection criteria;
- the satisfaction of a specific need;
- a minimum size (of enrolment).
53. For example, in Austria accreditation is not stipulated in
order to obtain public funding, but the private school must be non-profit-making,
meet a specific demand of the population and not impose selection
criteria for pupils’ admission. In Spain, where the principle of
non-discrimination is mentioned explicitly among the basic principles
of the education system, private schools must provide free education
in order to sign an agreement with the education authorities. In
Denmark, among other requirements, schools must be non-profit and
of a minimum size to be eligible for public funding.
54. In some countries, even where all conditions are fulfilled,
public funding is not necessarily granted because there is a discretionary
power of the administration in the matter (Norway, for example).
55. In Montenegro, the law provides for a positive obligation
to fund a private institution if the required conditions are met,
but the mutual rights and obligations of the State and of the institution
in question shall be fixed by a contract. The law also provides
for the prohibition to finance primary education institutions (and
the duty to interrupt an ongoing funding) if the enrolment in this
private school endangers the existence of the single public establishment
of the area concerned. This last condition, which is an extreme
case, deserves to be mentioned, as it is about preserving the role
of the State in the field of education.
assistance to families
56. In some countries, there is
machinery for direct assistance to families. Some of these contributions
are paid irrespective of whether the school attended by the pupil
is public or private, while others are only paid to families who
send their children to a private school (the corresponding fee is
supported directly in the case of students in State schools).
57. For example, the families of pupils attending recognised private
schools can obtain, in Germany, reimbursement of their enrolment
fees or transport costs; in Italy, partial reimbursement of enrolment
fees. In France, a back-to-school allowance is available to all
families – subject to means tests – whether they have children in
private or State schools. To mention an example from outside Europe,
in the United States, some States or municipalities provide for
a system of school vouchers for low income families with children
in private schools, so that they can pay the enrolment fees.
system of private school inspection
58. In general, private institutions,
in particular those of primary and secondary education, are subject
to a system of school inspection and competent authorities carry
out controls similar to the checks on State schools.
59. In some countries, the controls applied to private schools
are more developed, particularly where “recognised” schools are
concerned. For example, in Austria these schools undergo scrutiny
for compliance both with the requirements applicable to private
schools and with the stipulations relating to State schools. In Belgium,
a rigorous system of inspection (financial audit and administrative
review, checking of the compatibility of the syllabus) is applied
to subsidised private schools. In France, all private schools are
subject to inspection, but more extensive control applies to “recognised”
(contracted) schools (including the financial accounts, the teachers’
proficiency and the compatibility of the teaching syllabus).
The right to freedom of choice
in education cannot assert itself and cannot be understood correctly unless
it is placed in the broader context of a system which guarantees
the fundamental right to education in an effective manner. The principles
that should be the basis of this system should be:
- a quality education for all
students, capable of ensuring not only employability but also the
transmission of knowledge and values that promote freedom, equality,
democratic and responsible citizenship, solidarity and respect for
- fairness and equality of opportunity, inclusion and non-discrimination
61. These principles apply fully when it comes to the implementation
of the right to freedom of choice in education. This right is closely
linked to the right to freedom of conscience and respect for religious
and philosophical beliefs. Its establishment, however, cannot justify
any diversion by communitarian trends: the possibility to open schools
with a specific cultural and religious mark can never exempt these
schools or the families involved from the duty to respect the fundamental
values advocated by the Council of Europe. Similarly, a situation
where the right to freedom of choice in education becomes a way
for a social and economic elite to consolidate its grip on society
by reserving the best schools and universities must be avoided.
62. Parents’ rights regarding freedom of choice in education must
be construed with due regard to other fundamental rights and freedoms,
especially those of children themselves, and States must ensure
their effective observance. Thus protection of children’s rights
in a school setting must be fully secured.
63. In that respect, conditions for the creation and accreditation
of private schools and the power/duty of States to supervise compliance
with those conditions – and with the law in general – must offer
safety nets for averting excesses (practice of corporal punishment,
teaching methods that imperil children’s psychological integrity,
instruction which presents women as inferior to men, or contains
incitement to racism or discrimination, etc.). It would be advisable,
on that account, to recommend that verification procedures applicable
both to State and to private schools be in place to ensure that
parents’ freedom as to their convictions and their choice in education
do not give rise to infringements of children’s fundamental rights
and especially their dignity and their physical and psychological
64. In this framework, freedom of choice in education means that
parents should be able to have their children schooled in establishments
set up by private individuals or entities, and that the State should recognise,
where the (non-discriminatory) conditions laid down by law are met,
the validity of this schooling as these establishments fulfil a
function of public service.
65. Presented in those terms, this freedom seems to be generally
recognised in the Council of Europe member states. This is so at
least in the States that answered the questionnaire. But the point
raised is whether recognition of the freedom to open private schools
suffices to make the right to freedom of choice in education fully
effective, or whether free choice of education and teaching must
not only be recognised but also supported. In other words, one may
ask whether States are under an obligation to help the schools concerned so
that the families who turn to them bear a financial burden comparable
to the one imposed on families whose children are in State schools.
66. As the law and case law of the European Court of Human Rights
stand at present, States do not have any legal obligation to contribute
financially to the running of private schools under the European
Convention on Human Rights. But, as in other cases, an evolution
of the case law in this area is possible.
67. Like most provisions of the Convention, Article 2 of the Additional
Protocol has had a constantly evolving interpretation. Thus, in
its judgment in the case of Kjeldsen
and Others v. Denmark, the Court not only confirmed that
the first sentence of this article “enshrines the right of everyone
to education” but also established the link between the first and
the second sentences by holding that “[i]t is on to this fundamental right
that is grafted the right of parents to respect for their religious
and philosophical convictions”, and pointed out that “the first
sentence does not distinguish, any more than the second, between
State and private teaching” (paragraph 50).
More recently, in its Leyla Sahin
judgment of 10 November 2005, the Court relied
on an Assembly recommendation to corroborate its approach inclining
to a dynamic interpretation of the Convention.Note
This shows the
importance attached to a statement of position by the Assembly.
This would involve, firstly, highlighting the inadequacies of the
present situation due to the lack of a legal obligation for States
to contribute to the running of private schools and, secondly, emphasising
that the interest at stake is the effectiveness of the right to
freedom of choice in education.
69. Moreover, the European Commission of Human Rights, in its
decision of 6 September 1995 on Application No. 23419/94, Verein Gemeinsam Lernen v. Austria,
while recalling that “there is no positive obligation on the State
under Article 2 of Protocol No. 1 to subsidise any particular form
of education”, reaffirmed that “Article 2 of Protocol No. 1 to the
Convention guarantees the right to start and run a private school
(cf. Jordebo and Others v. Sweden,
No. 11533/85, Dec. 6.3.87, D.R. 51, p. 128)” and also indicated
that “Article 14 … requires that any subsidies which are made should
not be made in a discriminatory fashion”.
70. In this respect, public funding of private schools meets the
need to guarantee equal treatment among all pupils and among all
families. No valid argument seems to justify the idea that families
who elect to exercise their right to freedom of choice in education
should agree to pay the whole of the expenses which the State consents
to cover (in full or in part) for State school pupils. Otherwise,
the protection of this right is weakened, even withheld in practice
from all families without sufficient means, contrary to the principle
71. It may be added that in countries where a significant percentage
of pupils are registered in recognised private institutions, if,
today, these pupils were to be educated in State schools, the burden
on the State budget (or local communities) would probably be heavier
than what is necessary to provide a fair financial share for the
private schools in question.
72. It is of course altogether legitimate for financial participation
by the State (or by other public authorities) to be contingent on
the beneficiary private school’s compliance with the conditions
also imposed on State schools and stipulated in order to offer good
quality education. Indeed, compliance with these conditions signifies
that the private school genuinely aids the mission of public service
in the field of education. In this respect, the State must not only
have the possibility, but also the obligation of regularly certifying
by appropriate control mechanisms that the standards which are imposed
by law on all schools to assure pupils of an education and proper
conditions of study are met.
73. An observation on “pluralism”: it is clear that the State
must guarantee and preserve pluralism in its own system of schools,
and this starting with State schools; but a system that includes
only State schools cannot fulfil all the requirements of true pluralism.
The European Court of Human Rights does not disregard the importance
for true pluralism of the existence of private schools (see paragraphs
26 and 27). Having regard to the obligation of impartiality towards
the various convictions, and to the principle of secularity, it
can be argued that pluralism is guaranteed more easily and therefore
more effectively by the State when it permits a network of non-State
schools to be part of the national education system.
74. The effective implementation of the right to freedom of choice
in education helps to match educational provision with the demand
of families. If certain objective and fair conditions, to which
the creation and operation of private educational institutions can
be subject to, are met, this can promote the development of quality
education. For example, certain innovations which are authorised
in private institutions can allow parents to compare the merits
of various teaching methodologies or alternative contents.
In short, effective protection of the right to freedom of
choice in education requires:
by law of the right to open private teaching establishments, at
the levels of primary and secondary education;
- the possibility for these establishments to form part
of the system of the public education service, and for their pupils
to obtain the same diplomas as those conferred on completion of
studies in a State school;
- a fair funding system for private educational institutions
which receive the authorisation required by law.
76. These three elements should be subject only to compliance
with the fair conditions determined by law. The applicable requirements
– and the inspection arrangements made to supervise their observance
– should be aimed at securing to all pupils working conditions and
a quality of education consistent with the standards applied to
schools run by the State and/or the other public authorities.
77. Furthermore, it is plain that private schools should be allowed
no discriminatory selection (for example, the possibility of excluding
pupils on the ground of their religious convictions), and that in
no case the teaching they offer should promote values and attitudes
in conflict with the values on which the Council of Europe is based.
Private institutions must also give parents all the necessary information
(including information about their courses and opportunities for
students to access the next level of studies) in order to permit
informed decision making.
78. Finally, the State must safeguard the permanence of public
schooling throughout its territory and that is in order to guarantee
pluralism; it seems therefore legitimate to refuse the opening of
a private establishment, if its creation means the non-viability
of the single public establishment existing in the school area concerned for
the corresponding levels of education. Nevertheless, in this case,
the State must ensure that the right to freedom of choice in education,
as guaranteed by the European Convention on Human Rights, is fully respected
in the public institution in question.
Two further conditions may be justified (without being indispensable):
- the offer of specific educational
provision in response to a demand not met by the State schools in
the same locality;
- a minimum size (testifying to the existence of a real
need as well as a certain viability).
80. Adequate financial support is indispensable in order to uphold
the principle of equal treatment whatever the educational choice
of families may be. This does not presuppose that the expenses of
private schools should be defrayed in full, but that the expenditure
per pupil borne by the State should not vary significantly according
to the choice of families, so that the choice does not penalise
81. States must retain complete freedom as to the actual funding
arrangements: general grants, earmarked subsidies, or others. As
an alternative (or complement) to coverage or reimbursement of certain
costs, they may also choose to grant families standard reimbursements
at an appropriate level.
82. It is also the right, not to say duty, of States to make their
financial participation subject to precise conditions. In that respect,
the requirements linked with the creation of the schools and the
conferment of a status incorporating them into the national education
system may be backed by further requirements, particularly the condition
of being non profit-oriented, and subjection to auditing of accounts.
83. The importance which this report attaches to the role of private
schools should not make us lose sight of the fact that effective
protection of the right to freedom of choice in education also calls
for quality State education. It is not at all a matter of arguing
that the State should relinquish, or even reduce, its role in this crucial
area. In fact what is needed is a system in which State and private
schools coexist on an equal footing.
84. Investment in education (State and private) signifies a stake
in a country’s future. Of course, account must be taken of the difficulties
faced by States in the current period of economic crisis and budgetary restrictions.
In such a context, it is understandable that States are able to
reform their systems (where necessary) only by stages. Nonetheless,
the necessary reforms should be put in hand without delay and be completed
within a reasonable time – for example, within the term of a legislature.