Text dokumentu

Your Ref. No.: ECHR-LE14.8bP3 File No.: 10/2023/SZD/LK Ref. No.: KVOP-25292/2023 Date: 7. July 2023 Georges Ravarani President of the Fifth Section European Court of Human Rights Council of Europe 67075 Strasbourg Cedex France Application No. 37614/22 S. v. the Czech Republic: Written comments of the Public Defender of Rights as a third party Dear Sir, Thank you for your permission to submit third-party comments in the above case. I would hereby like to provide the Court with my observations on the situation of children with disabilities in the Czech education system before 2016 [1] (i.e. at the time of the applicants' case). In view of the questions presented by the Court to the parties, in particular Question 1 on discrimination and reasonable accommodations, I believe that knowing the legal and social context of that time would be useful to the Court in the present case. The Public Defender of Rights as a third party 1. Let me begin by noting that I am submitting these comments as the Public Defender of Rights (the Czech ombudsperson), i.e. an independent and impartial institution operating in the Czech Republic. The Defender primarily conducts inquiries based on complaints lodged by individuals or on his own motion, with a view to protecting persons from unlawful or improper conduct of authorities and other institutions. However, he is also active in other areas. As the national equality body, he also deals with protection against discrimination and provides methodological assistance to victims of discrimination. The Defender also monitors the implementation of the UN Convention on the Rights of Persons with Disabilities. Although the Czech Republic has not yet established an accredited national human rights institution (NHRI) in accordance with the Paris Principles, the Defender has been playing this role to some extent - as is true of some other Council of Europe Member States - through his activities to date and also in view of the institutional developments outlined above. 2. The Defender regularly encounters issues related to the education of children with disabilities. Their individual cases can be addressed in the context of inquiries into the actions of governmental bodies (in particular the Czech Schools Inspectorate, regional authorities and the Ministry of Education, Youth and Sports) and when assessing claims of discrimination in the field of education. 3. The Defender has dealt with the applicants' case several times in the past. My predecessor first assessed a claim of discrimination on grounds of disability in the field of education, [2] and I subsequently provided the applicants with methodological assistance before they filed an appeal on a point of law in the same case. [3] In another case, the then Defender also dealt with possible discrimination against one of the applicants in the area of labour law. [4] 4. I do not intend, however, to support any of the parties and to address the admissibility and merits of the application. Instead, I shall focus on related more general issues. I decided to submit these comments primarily because we had encountered several similar cases showing that the provision of support measures for children with special educational needs had suffered from systemic deficiencies prior to 2016. Relevant legislation 5. Firstly, I will briefly describe the relevant legislation in force before 2016. [5] According to the Charter of Fundamental Rights and Freedoms, which forms part of the Czech constitutional order, everyone without any distinction has the right to education, [6] where education at primary and secondary schools is free for Czech citizens. [7] The conditions of primary education are regulated by the Schools Act, which is based, among other things, on the principle of equal access to education without any discrimination on the grounds of disability, and on the principle of consideration for the educational needs of individuals. [8] 6. According to the Schools Act, pupils with special educational needs (including pupils with disabilities) [9] have the right to education with contents, forms and methods corresponding to their educational needs and capabilities, as well as to the creation of the necessary conditions facilitating such education and to counselling services. [10] This was mainly secured through support measures (podpůrná opatření), such as teaching assistants and individual education plans. [11] Special educational needs of pupils were identified by school counselling centres, i.e. diagnostic and counselling centres providing professional special-education and pedagogical-psychological services. [12] 7. Pupils with disabilities are also protected by the Anti-Discrimination Act, according to which the refusal or failure to take reasonable accommodations (přiměřená opatření) aimed to enable a person with disability to benefit from services intended for the public, [13] including education, may also constitute indirect discrimination. [14] The obliged entities may only be exempted from the duty to take reasonable accommodations if such measures would mean a disproportionate burden for them. [15] 8. Although support measures under the Schools Act and reasonable accommodations under the Anti-Discrimination Act are not interchangeable concepts, they are closely related. The category of reasonable accommodations is broader and includes a variety of material and non-material adjustments to help pupils with disabilities in their education. In my opinion, reasonable accommodations also include support measures for pupils with disabilities under the Schools Act. [16] System of support measures in education in practice 9. As I have already indicated, the system of support for pupils with disabilities described above showed shortcomings in practice. Many schools encountered difficulties as they lacked sufficient material, financial or knowledge background for the proper provision of support measures. [17] People also criticised the lack of uniformity in granting support in individual regions, caused by the lack of standardised procedures and methodological guidance. [18] The imperfect functioning of the system is evidenced by the significant number of complaints addressed to the Defender in this regard. [19] Below, I therefore describe specific issues that we encountered in our work and that may also be relevant to the Court. Funding of teaching assistants 10. One of the most common problems encountered before 2016 concerned the funding of teaching assistants. The school headteacher had the power to establish the position of teaching assistant for pupils with disabilities based on a statement issued by the school counselling centre and with the consent of the regional authority. [20] However, the pupil did not have any legal entitlement to this support measure. [21] 11. Teaching assistants were funded from several sources. Funds were provided to the schools mainly by the regional authorities as part of an additional contribution to the standard amount per pupil, or possibly from provisions allocated for this purpose. [22] However, it was common that the regional authority approved the establishment of a teaching assistant position but did not provide the headteacher with enough funds to pay for the assistant's services. Although the regional authorities had a certain degree of discretion in establishing provisions and allocating funds, they repeatedly stated that the funds that could be provided for teaching assistants were insufficient given the number of applications. Schools therefore had to cover the rest of the expenses from other resources, typically from their own income or from the founder's funds. [23] Nevertheless, the pupils' parents sometimes participated in the financing of a teaching assistant's services, or one of the parents even became the teaching assistant in order to overcome the lack of funding. 12. To illustrate this, I will describe five cases that were also addressed by the courts after the Defender's assessment of the case. All these cases are strikingly similar. We were contacted by parents of pupils with disabilities for whom the school counselling centre had recommended the support of a teaching assistant in all classes. The regional authority had approved the establishment of the teaching assistant position, but had only provided funds for part of the assistant's time. The headteacher was thus faced with the problem of how to pay the teaching assistant. In four of these cases, the remaining part of the teaching assistant's time was eventually paid by the pupils' parents (once together with a contribution from the town hall), [24] and in one case, the pupil's mother herself became the teaching assistant. [25] 13. In view of these cases, we concluded that the failure to provide free support measures, including a teaching assistant, to a pupil with a disability could constitute indirect discrimination in the form of a failure to take reasonable accommodations. At the same time, we explicitly pointed out in our reports the lack of system and uniformity in the funding of teaching assistants at the time, which led to a disproportionate burden on schools and jeopardised the proper education of children with special educational needs. None of the complainants succeeded in court, though. 14. In the first case, where the parents of a pupil with autism partially paid for the services of a teaching assistant, the complainant first attempted to defend himself against the regional authority's actions by filing an administrative action. This failed because, according to the administrative courts, the regional authority's approval of the establishment of the teaching assistant position had not been an administrative decision and had not interfered with the pupil's public rights. [26] The Constitutional Court found no violation of the right to education and upheld the decision. [27] The complainant also sued the State (the Ministry of Education, Youth and Sports) by an anti-discrimination action, but again without success. The court dismissed the action since, in its opinion, the interference could not be attributed to the State. On the other hand, the adoption of reasonable accommodations was within the competence of the headteacher, and the regional authority's approval did not imply that the school would automatically receive funding from the State budget for the establishment of the teaching assistant position. [28] The complainant did not appeal against this judgment. 15. In the second similar case, involving a pupil with autism and developmental dysphasia, the complainant filed an anti-discrimination action against the city, the administrative region and the State (the Ministry of Education, Youth and Sports). The first-instance court dismissed the action. [29] The second-instance court partially granted the complainant's appeal and ordered the State to reimburse the complainant for the amount the parents had paid for the teaching assistant. [30] However, the Supreme Court later cancelled this decision further to an appeal on a point of law, stating that the State had not committed any act of discrimination against the complainant and the funds for a teaching assistant exceeding the funds provided from the State budget should have been paid by the school from other resources. [31] Since even the complainant's constitutional complaint was unsuccessful, [32] the first appeal was subsequently rejected in accordance with the legal opinion of the Supreme Court. Further proceedings on the appeal on a point of law are still pending. 16. In the third similar case, this time involving a pupil with mild mental disability and autism, the complainant defended himself through an antidiscrimination action filed against the school. The court dismissed the action reasoning that the pupil's mother had paid only for the services of a personal assistant, not for the services of a teaching assistant, which had been performed by the same person. Moreover, the mother had paid this assistant directly, not through the school. [33] Neither a regular appeal nor an appeal on a point of law was successful; [34] proceedings on a constitutional complaint are currently pending. 17. In the fourth case, in which the pupil's mother and the town contributed to the cost of the teaching assistant for a pupil with special educational needs, the court also dismissed the anti-discrimination action against the State. [35] According to the court, it was the school, not the State, that had been responsible for providing funds for the teaching assistant. The complainant did not appeal against the court's decision. 18. The last case involved a pupil with a disability whose mother decided to take herself the position of teaching assistant. The appellate court cancelled the first dismissing judgment on the anti-discrimination action filed against the school. [36] However, the first-instance court then dismissed the action again on the grounds that the school had exhausted all its objective possibilities for covering the rest of the teaching assistant's costs. [37] The complainant did not appeal again. 19. It is clear from these cases that the funding of teaching assistants was a widespread and pressing issue before 2016. Moreover, it was difficult to resolve in view of the frequently formalistic courts' decision-making. For a long time, it was even unclear who was responsible for these situations. In the end, case law settled on the view that deficiencies in the funding of teaching assistants could not be attributed to the State, and their resolution belonged to the school headteacher's competence. 20. Shifting this burden to the schools could seem a bit harsh. As a result, headteachers were forced to seek funding from external sources or in their own budgets (even at the expense of lowering the teacher' non-claimable remuneration). It is not difficult to imagine that under these conditions, some schools tended to look for ways to partially or even completely avoid their task of educating pupils with special educational needs. 21. It should be added that the State, too, must have been aware of the problem with the funding of teaching assistants. At the time, the Commissioner for Human Rights of the Council of Europe [38] and the Czech Schools Inspectorate also commented on this topic (in addition to courts deciding on individual cases). [39] Teaching assistants in after-school groups (družiny) 22. A specific problem related to teaching assistants was their assignment to after-school groups, i.e. a school facility for recreational learning where pupils can spend time after school. An opinion was voiced that teaching assistants could not work in after-school groups, and individual administrative regions took different approaches in this regard. We therefore inquired into this issue of our own motion [40] and concluded that the teaching assistant's position could also be established in after-school groups. This, however, did not require the approval of the regional authority, as the latter could not finance the teaching assistant anyway, and the headteachers were thus forced to use other financial resources. 23. The question remains to what extent the possibility of a teaching assistant's support was actually utilised in the after-school groups. As the above cases indicate, funding was often unavailable to cover at least all the regular classes. This likely made it all the more difficult to secure such an assistant for the time spent in after-school groups. Individual education plan 24. Another type of support measure the Defender was contacted about was an individual education plan - a binding document for ensuring a pupil's special educational needs. The headteacher was responsible for the preparation of such an individual education plan in co-operation with the school counselling centre and the pupil's legal representative. [41] As a rule, an individual education plan should have been drawn up before the pupil started school, and in any case, not later than 1 month after the pupil started school or after the pupil's special educational needs were identified. It could have been supplemented and modified throughout the school year as needed. [42] 25. In relation to individual education plans, we identified discrimination in the form of a failure to take reasonable accommodations in a case where the school refused to modify such a plan according to the recommendations of the school counselling centre. [43] In another case, we concluded that a school might also have committed an act of discrimination if an individual education plan was implemented belatedly. A school should not just passively wait until the need for support measures is proven by the school counselling centre but should rather take active steps towards drawing up an individual education plan. [44] Conclusion 26. In summary, the system of support measures in education was rather confusing in practice and did not always work properly. [45] The environment at the time was challenging not only for schools, but especially for pupils with disabilities and their parents. The parents may have felt pressured to contribute financially or personally to their children's education when difficulties were encountered, or to change the school (often by transferring their child to a special school instead of a mainstream school). Moreover, the situation may have seemed legally deadlocked, as it was almost impossible to claim remedy in a reasonable time, and some parents would not even dare to sue the school for fear of impairing the relationship. I do not dispute that some mistakes were undoubtedly made on the parents' part, for example in the form of late communication of a child's diagnosis or dealing with the school in a conflictive way. However, I believe that this behaviour can be better understood with the knowledge of the described context. 27. Finally, I would like to point out that in 2016, the system significantly changed thanks to the "inclusion" amendment to the Schools Act. [46] The amendment introduced State-funded claimable support measures and defined situations in which they were to be provided to pupils. Judging by the number of complaints that we continue to receive in this area, even the current legislation and its application are not always perfect. [47] However, it should prevent situations like those I described above. I hope that my comments appropriately complement the parties' submissions and will be helpful to the Court. Yours sincerely, Stanislav Křeček Public Defender of Rights Annexes (1) Resolution of the Regional Court in Ostrava of 3 January 2013, Ref. No. 22 A 154/2012-20 (2) Judgment of the District Court for Prague 1 of 13 July 2016, Ref. No. 26 C 121/2014-105 (3) Judgment of the District Court for Prague 5 of 18 September 2017, Ref. No. 21 C 69/2015-228 (4) Judgment of the Municipal Court in Prague of 15 March 2018, Ref. No. 29 Co 466/2017-265 (5) Judgment of the District Court in Kolín of 26 June 2018, File No. 12 C 447/2015-102 (6) Judgment of the Regional Court in Prague of 12 June 2019, Ref. No. 21 Co 329/2018-305 (7) Judgment of the District Court for Prague 1 of 29 January 2018, Ref. No. 26 C 25/2016-97 (8) Judgment of the District Court in Jablonec nad Nisou of 16 September 2021, File No. 12 C 224/2018 (9) Study: "Asistent pedagoga - analýza personálních, legislativních, statistických a procedurálních aspektů" (Teaching Assistant - Analysis of Personnel, Legislative, Statistical and Procedural Aspects), Palacký University in Olomouc, 2013 (10) Report of the Commissioner for Human Rights of the Council of Europe of 21 February 2013 following his visit to the Czech Republic on 12-15 November 2012, CommDH(2013)1 [1] The "inclusion" amendment to Act No. 561/2004 Coll., on pre-school, primary, secondary, higher vocational and other education (the Schools Act) came into force and significantly changed the system on 1 September 2016. [2] Report of the Public Defender of Rights of 3 July 2014, File No. 49/2013/DIS, available in Czech at: https://eso.ochrance.cz/Nalezene/Edit/2014 [3] Letter of the Public Defender of Rights of 2 February 2021, File No. 7462/2020/VOP, available in Czech at: https://eso.ochrance.cz/Nalezene/Edit/8912 [4] Report of the Public Defender of Rights of 5 February 2016, File No. 48/2013/DIS, available in Czech at: https://eso.ochrance.cz/Nalezene/Edit/3692 [5] Unless stated otherwise, I refer to the legislation that was in force until 31 August 2016. If the specific provision has changed since its adoption in 2016, I refer to the version that was in force at the time of the applicants' case, i.e. in the 2011/2012 school year. [6] Art. 33 (1) in conjunction with Art. 3 (1) of the Charter of Fundamental Rights and Freedoms. [7] Art. 33 (2) of the Charter of Fundamental Rights and Freedoms [8] Section 2 (1) (a) and (b) of Act No. 561/2004 Coll., on pre-school, primary, secondary, higher vocational and other education (the Schools Act). [9] Section 16 (1) of the Schools Act. [10] Section 16 (6) of the Schools Act. [11] Sections 1, 6 and 7 of Decree No. 73/2005 Coll., on education of children, pupils and students with special educational needs and exceptionally gifted children, pupils and students. [12] Section 16 (5) and Section 116 of the Schools Act. [13] Section 3 (2) of Act No. 198/2009 Coll., on equal treatment and legal remedies for protection against discrimination and on amendment to certain laws (the Anti-Discrimination Act). [14] Letter of the Public Defender of Rights of 3 June 2020, File No. 5493/2019/VOP, available in Czech at: https://eso.ochrance.cz/Nalezene/Edit/8122; Judgment of the Supreme Court of 13 January 2022, File No. 25 Cdo 244/2020, available in Czech at: https://nsoud.cz/Judikatura/​judikatura_ns.nsf/WebSearch/EAADF0F91CE3B947C12588290015FED9?openDocument&Highlight=0, [15] According to the criteria set out in Section 3 (3) of the Anti-Discrimination Act. [16] Letter of the Public Defender of Rights, File No. 5493/2019/VOP, op. cit.; Letter of the Public Defender of Rights, File No. 7462/2020/VOP, op. cit. [17] For example, in a 2012/2013 survey conducted by the Czech Schools Inspectorate, 69.5% of primary school headteachers stated that there were obstacles to the implementation of inclusion in schools. See the following topical report of the Czech Schools Inspectorate: "Podpora inkluzivního vzdělávání v základních a středních školách ve školním roce 2012/2013" (Support for Inclusive Education in Primary and Secondary Schools in the 2012/2013 School Year), p. 14, available in Czech at: https://www.csicr.cz/Csicr/media/Prilohy/PDF_el._publikace/​Tematick%​c3%a9 zpr%c3%a1vy/2014_TZ_inkluzivni_vzdelavani_2012_2013.pdf [18] In relation to teaching assistants, see the following study: "Asistent pedagoga - analýza personálních, legislativních, statistických a procedurálních aspektů" (Teaching Assistant - Analysis of Personnel, Legislative, Statistical and Procedural Aspects), Palacký University in Olomouc, 2013, pp. 57-58 (see annex). [19] Between 2009 and 2020, the Defender assessed more than 150 complaints related to the education of pupils with special educational needs. This represents almost 13% of the total number of complaints received by the Defender in the field of education. Most of them - up to two thirds - concerned primary schools. [20] Section 16 (9) and (10) of the Schools Act. [21] Judgment of the Supreme Administrative Court of 31 October 2013, Ref. No. 8 As 4/2013-52, available in Czech at: https://vyhledavac.nssoud.cz/DokumentOriginal/Html/629749 [22] In accordance with Sections 160 (1)(c) and (d) and 161 (2) and (6) of the Schools Act and Decree No. 492/2005 Coll., on regional standards. [23] Section 160 (6) of the Schools Act. [24] Report of the Public Defender of Rights of 21 August 2013, File No. 189/2012/DIS, available in Czech at: https://eso.ochrance.cz/Nalezene/Edit/2152; Report of the Public Defender of Rights of 21 March 2014, File No. 7097/2012/VOP, available in Czech at: https://eso.ochrance.cz/​Nalezene/​Edit/4270; Letter of the Public Defender of Rights of 22 May 2017, File No. 7075/2015/VOP, available in Czech at: https://eso.ochrance.cz/Nalezene/Edit/6460; Report of the Public Defender of Rights of 15 September 2015, File No. 3343/2014/VOP, available in Czech at: https://eso.​ochrance.cz/Nalezene/Edit/4606 [25] Report of the Public Defender of Rights of 17 August 2017, File No. 5105/2015/VOP, available in Czech at: https://eso.ochrance.cz/Nalezene/Edit/5554 [26] Resolution of the Regional Court in Ostrava of 3 January 2013, Ref. No. 22 A 154/2012-20 (see annex); Judgment of the Supreme Administrative Court Ref. No. 8 As 4/2013-52, op. cit. [27] Resolution of the Constitutional Court of 18 March 2014, File No. II. ÚS 365/14, available in Czech at: https://nalus.usoud.cz:443/Search/GetText.aspx?sz=2-365-14_1. [28] Judgment of the District Court for Prague 1 of 13 July 2016, Ref. No. 26 C 121/2014-105 (see annex). [29] Judgment of the District Court for Prague 5 of 18 September 2017, Ref. No. 21 C 69/2015-228 (see annex). [30] Judgment of the Municipal Court in Prague of 15 March 2018, Ref. No. 29 Co 466/2017-265 (see annex). [31] Judgment of the Supreme Court of 14 October 2020, File No. 25 Cdo 3821/2018, available in Czech at: https://nsoud.cz/Judikatura/judikatura_ns.nsf/WebSearch/DEEEA92E65E54769​C125​86​58001DD5E3?openDocument&Highlight=0, [32] Resolution of the Constitutional Court of 14 December 2021, File No. I. ÚS 99/21, available in Czech at: https://nalus.usoud.cz:443/Search/GetText.aspx?sz=1-99-21_1. [33] Judgment of the District Court in Kolín of 26 June 2018, Ref. No. 12 C 447/2015-102 (see annex). [34] Judgment of the Regional Court in Prague of 12 June 2019, Ref. No. 21 Co 329/2018-305 (see annex); Judgment of the Supreme Court, File No. 25 Cdo 244/2020, op. cit. [35] Judgment of the District Court for Prague 1 of 29 January 2018, Ref. No. 26 C 25/2016-97 (see annex). [36] Judgment of the District Court in Jablonec nad Nisou of 18 September 2019, File No. 12 C 224/2018; Judgment of the Regional Court in Ústí nad Labem of 4 February 2021, Ref. No. 35 Co 295/2019-117. [37] Judgment of the District Court in Jablonec nad Nisou of 16 September 2021, File No. 12 C 224/2018 (see annex). [38] Report of the Commissioner for Human Rights of the Council of Europe of 21 February 2013 following his visit to the Czech Republic on 12-15 November 2012, CommDH(2013)1, pp. 22-23 (see annex). [39] See e.g. the following topical report of the Czech Schools Inspectorate: "Podpora inkluzivního vzdělávání v základních a středních školách ve školním roce 2012/2013" (Support for Inclusive Education in Primary and Secondary Schools in the 2012/2013 School Year), op. cit., pp. 8-9; annual report of the Czech Schools Inspectorate for 2014/2015, pp. 46-47, available in Czech at: https://​www.csicr.cz/Csicr/media/Prilohy/PDF_el._publikace/V%c3%bdro%c4%8dn%c3%ad zpr%c3%a​1vy/​Vyrocni_zprava_CSI_2014_2015.pdf. [40] Report of the Public Defender of Rights of 7 June 2016, File No. 301/2015/VOP, available in Czech at: https://eso.ochrance.cz/Nalezene/Edit/4138. [41] Section 6 (6) of Decree No. 73/2005 Coll. [42] Section 6 (5) of Decree No. 73/2005 Coll. [43] Letter of the Public Defender of Rights, File No. 7075/2015/VOP, op. cit. [44] Report of the Public Defender of Rights of 24 August 2017 December 2774/2016, File No. 2774/2016/VOP. [45] Specifically, it did not meet the condition of adaptability in terms of Article 24 of the UN Convention on the Rights of Persons with Disabilities. Cf. General Comment No. 4 on the right to inclusive education, dated 25 November 2016, CRPD/C/GC/4, items 26-38. [46] Act No. 82/2015 Coll., amending Act No. 561/2004 Coll., on pre-school, primary, secondary, higher vocational and other education (Schools Act), as amended, and certain other laws. [47] Cf. e.g. the following analysis: "Zkušenosti rodičů dětí se speciálními vzdělávacími potřebami" (Experience of Parents of Children with Special Educational Needs), PAQ Research, 2022, available in Czech at: http://spoluskola.cz/uploads/analyza.pdf