James Rooney is one of the Oxford Human Rights Hub/Rhodes University Travelling Fellows. The Fellowship is a partnership between the Oxford Human Rights Hub, Rhodes University in South Africa, and the Legal Resources Centre (LRC), a pre-eminent South African public interest law firm. Two Oxford graduate students a year travel to Grahamstown, in South Africa’s Eastern Cape, for six months to intern at the LRC and research at the Rhodes Law Faculty. This blog post is the second instalment of a series in which James updates the Oxford Human Rights Hub on his work at the LRC. You can read the first two instalments here and here.
South African public interest law firm the Legal Resources Centre has been granted leave to intervene in an upcoming European Court of Human Rights case concerning the right to accessible education. Amanda Kosa v Hungary challenges Hungary’s compliance with the Convention right to education under Article 2 of Protocol 1 ECHR.
The case concerns a group of Romani children who have been moved from an integrated school which provided scholar transport to a school established by the Greek Catholic Church to teach the Romani children, which is not providing transport. As a result, the children from the Romani settlement are not making it to the school, and are missing their classes.
The LRC are intervening singly in relation to the issue of scholar transportation as an element of the right to education. Last year, the Grahamstown office of the LRC litigated a case called Tripartite Steering Committee v Minister for Education, in which Plasket J stated: “where scholars’ access to schools is hindered by distance and an inability to afford the costs of transport, the State is obliged to provide transport to them in order to meet its obligations in terms of s 7(2) of the Constitution, to promote and fulfil the right to basic education.” Accordingly, the right to basic education under S29(1)(a) of the Constitution has been expanded to include a right to transportation if you lived in excess of 5km from your school.
The LRC are intervening with the intention of indicating to the ECtHR the relevance of the South African jurisprudence in this area. The substantive content of the right to education in South Africa has been expanded upon greatly in recent years. Alongside provision of scholar transportation, an obligation on the State to provide essentials such as school furniture, textbooks, and teachers have been read into S29(1)(a) of the South African Constitution. Many of these developments have been covered in the past by the Oxford Human Rights Hub.
Comparatively, Strasbourg’s jurisprudence in relation to the content Article 2 of Protocol 1 has been less expansive. Its case law has focused on discrimination against ethnic or linguistic minorities in the provision of education, in violation of Article 14 ECHR with Article 2 of Protocol 1 ECHR. It is notable that, as with Kosa, in two of the main cases – DH v Czech Republic and Oršuš v Croatia – the applicants were Romani children.
While a claim of discrimination contrary to Article 14 ECHR is being pursued in the present case too, the issue of whether scholar transportation must be provided to fulfil a Contracting State’s obligations under the Convention exists independently of any discrimination concerns. This case thus presents an opportunity for the Court to add substance to Article 2 of Protocol 1, independent of any relationship to Article 14 ECHR. A judgment in favour of the applicants would not only provide relief to the aggrieved Romani children involved, it would also be a positive step towards expanding our understanding of the obligation which Article 2 of Protocol 1 ECHR imposes on Contracting States.
While predicting the outcome of the case is premature, the inclusion of the LRC as an intervener in this case is itself an encouraging development, as it represents a willingness of the Court to take consideration of the comparatively expansive South African jurisprudence in this area.