In G.L. v. Italy, the European Court of Human Rights found that Italy’s failure to provide special assistance to a pupil with autism constituted a discriminatory violation of her right to education. Marie Spinoy and Kurt Willems analyse the Court’s reasoning and discuss why this judgement forms a welcome reiteration of the CRPD’s importance in this case law.
Although Italian law provided for specialized assistance for children with disabilities, the girl had not received this assistance during two school years, when she commenced primary school. She claimed this violated her rights under article 14 ECHR (non-discrimination) combined with article 2, First Protocol to the ECHR (right to education), under article 2 taken alone, and under article 14 combined with article 8 ECHR (right to private life). The Court considered the complaint under article 14 combined with article 2 as it considered the alleged discrimination to be at the heart of the complaint.
Inclusive education as the standard
The Court traditionally interprets article 2 ‘in harmony with other rules of international law’. Indeed, in two previous cases it had called the CRPD, especially the right to inclusive education in article 24 CRPD, the relevant standard concerning education for learners with disabilities (see çam and Enver Şahin). However, in a recent decision it made no mention of the CRPD and considered segregated and inclusive education as equivalent alternatives. The heavily criticized judgement of Stoian v. Romania similarly led to questions being asked on the Court’s understanding of disability rights (see in extenso our contribution here).
In G.L. the Court reaffirms the çam-line of its case law. It refers to the CRPD as the relevant benchmark and points to an international consensus that inclusive education is the most appropriate means to guarantee equal opportunities. Inclusive education, thus, forms part of the member states’ international responsibilities in this area. An alleged violation in this primary school setting (as opposed to the previous higher education cases) is all the graver as primary education forms the basis of one’s education and social integration and one’s first experiences within society.
Questions on conformity with the CRPD do remain as the Court continues to treat integration and inclusion in education as equivalent educational options. Yet under the CRPD, both terms have a different meaning, inclusion being the most demanding for schools and authorities. Inclusion is required under the CRPD, as integration places a significantly higher burden on children with disabilities. Moreover, uncertainty remains as to what duties apply under article 2 alone (inclusive education) as opposed to article 14 and 2 combined (non-discrimination in inclusive education). What is clear is that reasonable accommodations to learners are required under articles 14 and 2 and that the court interprets this obligation considering the consensus on inclusive education.
Inclusive equality: reasonable accommodations with financial consequences
While Italian law provided for inclusive education without discrimination, the national authorities had not specified how these should be provided for two years, leaving the applicant without assistance. Italy thus violated article 14 which requires that reasonable accommodations (as interpreted in article 2 CRPD) are provided to persons with disabilities.
Interestingly, the Court repeatedly emphasizes that children with disabilities should be able to participate in education, in conditions equivalent to those of other children (e.g., §§ 66-69 & 72). This has clear financial consequences: Italy should have considered whether its alleged budgetary restrictions (invoked as the reason because of which the assistance had not been proffered) impacted both groups of children’s educational opportunities similarly and whether these could have been compensated by an equitable division of the means. The totality of resources for education should be considered rather than the ‘resources available…in the interests of disabled children generally’.
Both these elements neatly tie into the inclusive equality that the CRPD Committee has subscribed to which contains both a redistributive and a participative dimension (see also §12). G.L. can thus rightly be described as a case in which the court not only adopts the CRPD-rhetoric but ensures the rights concerned are effective by connecting concrete and financial consequences to them. Thus, it reaffirms a line of case law that will hopefully be confirmed and even further refined in the future.