AS TO THE ADMISSIBILITY OF
Application no. 62059/00
by Fatmir SKENDER
The European Court of Human Rights (Third Section), sitting on 10 March 2005 as a Chamber composed of:
Mr B.M. Zupančič,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs M. Tsatsa-Nikolovska,
Mr E. Myjer,
Mr David Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged
with the European Commission of Human Rights on
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the Court's partial decision
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Fatmir Skender, Turkish by
birth, is a national of the
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
According to the Primary Education Act, pupils have to attend State primary schools in their place of residence. However, in the school situated in the applicant's district Centar Župa no classes in Turkish were available.
Between September and
2. Provision of education in Turkish in the applicant's district
“... we inform you that the Council of
Ministers ... [on]
1. The Ministry of
Education and Sport is responsible for providing education in the primary
schools in the
2. ... [education in] Macedonian cannot be replaced by [education in] Turkish [in Centar Župa], as the children have not been speaking Turkish before they started attending the school.
3. The Ministry ... is instructed to inform the parents of the pupils who boycotted the classes ... and request the [pupils] to return to the school [in Centar Župa] where special courses will be given so that [they could] catch up with the rest ...
The Ministry of Education and Sport urges that your children attend the courses in the [primary school]... in Centar Župa in accordance with the Primary Education Act.”
On 17 May 2000 the political party 'Liga za Demokratija' and the
associations of citizens “The World Macedonian Congress” and “the Association
of the Macedonians with Muslim Religion in Macedonia” asked the Constitutional
Court to examine the constitutionality of the Council of Minister's decision of
10 August 1999 and the respective Ministry's decision of 31 August 1999. On
... it, inter
alia, appears that (1) the impugned acts determined that Turkish was the
mother tongue of all the pupils [residing in] the
5. Under Article 48 § 4 of the Constitution the members of the national minorities have the right to education in their language in primary and secondary schools in accordance with the respective law. In the schools where the education is in the languages of the minorities, the Macedonian language shall be studied as well.
It follows that the members of the minorities are educated in the primary and secondary schools in their language, and that is, according to the court, the language of their choice [which they use] in their everyday life. Therefore, the provision of the Constitution established objective criteria for the fulfilment of the right to education of the national minorities in their language [which] does not depend on the subjective will of the State bodies ...
The impugned acts provide education in Turkish
for the pupils in the
3. Enrolment of the applicant's older daughter in a Turkish-speaking school in a different district
Under section 26 § 1 of the Administrative Disputes Act if the second instance administrative body does not pass a decision within sixty days, and on the person's repeated request to act does not reply within seven days, the person may institute administrative proceedings ...
... it cannot be established from the submitted documents that the [second instance] administrative body received [the applicant's] second request to act ... it follows that the complaint is premature.
The applicant's request that the Ministry provides education in Turkish ... is inadmissible, as under section 6 of the Administrative Disputes Act a complaint may only be lodged concerning the administrative acts and the [applicant's] request is not an administrative act ...”
“... the Supreme Court did not decide on the enjoyment of the right to primary education in the language of the minorities, but on the procedural conditions ... to institute administrative proceedings, as such [the decision] cannot have any repercussions in favour or to the disadvantage of the applicant ...
... the [impugned] decision is procedural and [does not examine] the merits and does not concern the right to primary education in the minorities' languages, therefore, the court holds that there are procedural impediments to examine the applicant's complaint ...
4. Enrolment of the applicant's younger daughter D. in a Turkish-speaking school in a different district
On 28 April 1999, having not received an answer from the Commission, the applicant lodged an administrative complaint with the Supreme Court.
The Centar Župa primary school attended by D. continues to teach regular classes in Macedonian, Albanian and Turkish.
B. Relevant domestic law and practice
Article 44 provides as follows:
“Every person has the right to education. Education is accessible to all persons under equal conditions. Primary education is compulsory and free of charge.”
Article 48 provides as follows:
“The members of minorities have the right to express, nurture and promote their identity and national attributes.
The Republic guarantees the protection of their ethnic, cultural, linguistic and religious identity.
The members of minorities have the right to establish institutions for culture and art, as well as scientific and other associations to express, nurture and promote their identity.
The members of minorities have the right to education in their language in the primary and secondary schools in accordance with the relevant law. In the schools where the education is provided in the minorities' languages, the Macedonian language shall also be taught.”
Article 110 § 3 sets out the Constitutional Court's competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation. Article 112 provides that the Constitutional Court shall repeal or revoke a law if it determines that it does not conform to the Constitution and that it shall repeal or revoke any other regulation or enactment, collective agreement, statute or programme of a political party or association, if it determines that it does not conform to the Constitution or law.
2. Rules of the
Section 51 provides that a person who claims
to be a victim of a violation of one of the rights set out in Article 110 § 3
of the Constitution shall have the right to file an application with the
3. Primary Education Act
Section 8 provides, inter alia, that the members of minorities shall have the right to education in their own language. They shall also study the Macedonian language.
Section 45 provides that primary schools shall admit all the pupils living in their district. Sections 46 and 47 provide that the parents are responsible for the enrolment of their children and for their regular attendance at the classes. The primary school shall inform the Ministry of Education and Sport about the pupils of its area who have not enrolled, or have not attended the classes for more then thirty days without a justification.
Section 48 provides, inter alia, that on the parents' or guardians' request the pupils may be transferred to another school.
4. Administrative Procedure Act
Section 230 provides that an appeal can be lodged against a decision of an administrative body with the second instance administrative body within fifteen days.
5. Administrative Disputes Act
Section 26 § 1 provides that a person may institute administrative proceedings before the Supreme Court provided that the second instance administrative body does not decide on the matter within sixty days from the day the appeal against the first instance administrative body is received, and does not react within seven days on the person's repeated request.
The applicant complained under Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 that his younger daughter was refused access to a Turkish-speaking school on the ground of his place of residence.
The applicant complained that his younger daughter was refused access to a Turkish-speaking school on the ground of his place of residence, invoking Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 which provide as follow:
Article 2 of Protocol No. 1
“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.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
1. The parties' submissions
The Government submitted that the applicant
had not exhausted domestic remedies as required by Article 35 § 1 of the
Convention as he lodged his complaint with the Court in
The Government further submitted that the applicant's application to the Court pursued the objective of obliging the State to provide his children with primary school education in the language of the nationality of which they were members. They pointed out that as a result of a political decision the primary school in Centar Župa has provided education in Turkish since 1999 and that the applicant's children have pursued their education in Turkish up until the present time. His application therefore serves no point.
The applicant submitted that in light of the
As regards the Government's argument that his
children were attending school in their mother-tongue Turkish, he argued that
this arrangement was without legal security due to the decisions of the Supreme
2. The Court's assessment
The Court recalls that Article 34 of the Convention requires that an individual applicant should claim to have been actually affected by the violation he alleges. That Article does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against the state of law or any particular decision in abstracto simply because they consider that it contravenes the Convention. Nor, in principle, does it suffice for an applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment (Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, § 33). The Court has accepted that an applicant may be a potential victim: for example, where he was not able to establish that the legislation he complained of had actually been applied to him on account of the secret nature of the measures it authorised or where an alien's removal had been ordered, but not enforced, and where enforcement would have exposed him in the receiving country to treatment contrary to Article 3 of the Convention or to an infringement of his rights under Article 8 of the Convention. However, in order to be able to claim to be a victim in such a situation, an applicant must produce reasonable and convincing evidence of the likelihood that a violation affecting him personally will occur; mere suspicion or conjecture is insufficient (see generally Senator Lines GMBH v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (dec.), no. 56672/00, with further references, in particular to the above-mentioned Klass and Others judgment).
The Court observes that in the present case the applicant's daughter D. has been receiving primary school education in Turkish since 1 September 1999 and that the applicant does not dispute that she continues to receive education in that language notwithstanding the decision of the Constitutional Court of 5 July 2000 that the provision of such language facilities to children whose mother tongue was Macedonian was contrary to the Constitution. It is therefore not apparent that the applicant can claim that his daughter is a victim of any discrimination in the provision of education from that time.
Even assuming that any potential issue arose from the alleged insecurity of the situation if the Centar Župa school ceased to provide teaching in Turkish, the Court would recall that the applicant has not brought the issue of discriminatory provision of education based on his place of residence before the domestic courts. His complaints concerning his older daughter were not decided on the merits due to his failure to comply with procedural formalities while he did not apply to bring his complaints concerning D. before the Constitutional Court which was empowered under Article 9 of the Constitution to determine complaints alleging discrimination and to revoke or annul any law or regulation that offended this provision.
It is a fundamental principle under the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law (see Aksoy v. Turkey, judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).
In the present case, the fact that the applicant's earlier claim in respect of his older daughter was unsuccessful on procedural grounds and that the Constitutional Court had, on application by certain organisations, ruled unconstitutional the decision to provide Turkish teaching in the Centar Župa school, cannot be regarded as indicating that an application concerning discrimination in the provision of Turkish-language teaching on grounds of residence would inevitably have been ineffective or incapable of providing redress and thereby exempting the applicant from the requirement to put the substance of his Convention complaints before the appropriate domestic bodies before coming to Strasbourg.
The Court concludes that the applicant has variously failed to show that his younger daughter is a victim of any violation of the provisions invoked or that he has exhausted domestic remedies.
The remainder of the application must, therefore, be rejected pursuant to Articles 34 and 35 §§1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Vincent Berger Boštjan