Earlier this week, the European Court of Human Rights ruled against Ştefan Stoian, a young man with quadriplegia, who took a case against Romania for denial of his right to education. The disappointing verdict came after almost a decade of legal action to secure the supports he needs to participate in mainstream schools. The judgment reveals the extent to which children with disabilities are marginalised and excluded from accessing justice.

The case centred on complaints that Romanian authorities had failed for much of Ştefan’s secondary education to take steps to ensure his access to school.

Now 18 years old, Ştefan endured years of indignities and a remarkably hostile response from the public education system for requesting personal assistance, educational adaptations and support to participate in mainstream schooling.

As the situation deteriorated and authorities failed to provide concrete support, Ştefan increasingly had to rely on his mother to ensure he could participate at local schools. “I had to carry him on my back upstairs into the classroom,” explained Luminiţa Stoian. Things took a turn for the worse when school representatives decided to ban Ms. Stoian from school premises, leaving Ştefan with no in-class assistance for extended periods.

On a number of occasions, Ştefan was refused any help to access toilet facilities and became the target of bullying when left to soil himself. Refusing to accept the situation, his mother Luminiţa continued to support her son inside the school premises despite concerted efforts by officials to exclude them both.

Matters came to a head in April 2013 when Ms. Stoian was ordered to leave the school. Refusing to abandon her son, the school called the police, following which Ms. Stoian was physically dragged by police and sustained a brachial plexus injury necessitating 45 days of medical treatment, a fact supported by forensic medical evidence.

Ştefan and his mother didn’t give up, turning to number of local and national authorities in Romania requesting the support he needed. Having achieved little real change following years of litigation and complaints, they turned to the European Court of Human Rights at the end of 2013. The case argued that Ştefan’s right to education had been violated due to the repeated refusals to provide him with in-class personal assistance and reasonable accommodations. The claim also alleged violation of Ştefan’s rights to non-discrimination, freedom from degrading treatment and argued that the treatment he experienced amounted to an infringement of his private and family rights. Although some remedies had been granted in national proceedings, the Romanian authorities never implemented them.

Barriers to education are systemic for children with disabilities in Romania, including physical inaccessibility, a lack of coordination between public authorities in the provision of support and high numbers of children with disabilities being denied inclusive education.

In submissions to the Court, legal representatives for the family, Constantin Cojocariu and Catalina Radulescu, pointed out that the right to education also entails obligations on the state to ensure equal access to education for children with disabilities. The legal team submitted that Romania had ratified the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) in 2011, which recognises the right to education in inclusive settings for children with disabilities. Under Article 24 of the CRPD, governments must provide supports, including reasonable accommodation and personal assistance, to achieve full participation and inclusion for children with disabilities in mainstream schools.

The applicants demonstrated that Romania had failed on all counts, providing only limited forms of support for short periods of time, having a long-term detrimental impact on Ştefan’s education.

Reflecting the international significance of the case, third-party submissions were made by a wide array of international experts and civil society organisations, including the UN Special Rapporteur on the rights of persons with disabilities, the Council of Europe Commissioner for Human Rights, the International Disability Alliance (IDA), the European Disability Forum (EDF), Inclusion International, Inclusion Europe, Amnesty International and the Regional Network for Inclusive Education Latin America, alongside Bucharest-based European Centre for the Rights of Children with Disabilities (CEDCD).

Validity submitted two interventions; one on the right to inclusive education of children with disabilities and a second on how the denial of reasonable accommodation can amount to torture and ill-treatment under the CRPD and the European Convention of Human Rights.

This week, Ştefan, his mother and his legal team were devastated when, in a remarkably short judgment, the European Court of Human Rights declined to find any human rights violations. Rejecting the analysis of all the third-party interveners that the right to education was likely to be violated in cases where the state fails to provide proper individualised support in schools, the Court found that Romania had “not turned a blind eye” to Ştefan’s needs.

Further, the Court decided not to consider the arguments of ill-treatment raised by the first applicant and on which the third-party intervenors had commented. It also declined to examine at all the arguments that Stefan had been denied access to justice under Article 13 of the Convention, again without providing any reason as to why these were not relevant.

The Court did reiterate that the Convention imposes a duty on states to make reasonable accommodation in the case of people with disabilities. It also recognised that international standards recommend inclusive education for children with disabilities – a point it reiterated twice – and confirmed the evidence of the third-party intervenors of the difficulties encountered by children with disabilities owing to a lack of infrastructure and reasonable accommodation. It highlighted that the Government admitted there were delays in ensuring accessibility of the school buildings.

The Court however confused the concepts of reasonable accommodation – an individualised measure to be provided on request – and accessibility which is an ex ante duty. The Court erroneously referred to modifying “the architectural accessibility of school buildings” as a reasonable accommodation rather than an accessibility measure. It also mischaracterised reasonable accommodations as “a temporary solution for an individual when accessibility is lacking”. This finding creates a direct conflict between the rights enshrined in the CRPD (ratified by 46 out of 47 Council of Europe Member States) and the European Convention.

The Court seems to have found against the applicant on the basis that the domestic court ordered interim measures for the applicant and the state took steps to provide them. This ignores completely the fact that these steps did not actually ensure Ştefan’s rights to education and non-discrimination in substance. The Court found that there was no violation of any of Ştefan’s rights because “the domestic authorities complied with their obligation to provide reasonable accommodation… and… to allocate resources in order to meet the education needs of children with disabilities.” In essence, this finding by the Court reduces the substantive obligation to ensure that children with disabilities have access to education under the Convention on a basis of equality with other children to a mere procedural obligation to allocate resources, however inadequate that allocation may be in practice to secure children with disabilities their rights. It arguably places the question of individualised support to children with disabilities into the realm of public policy, taking it out of the realm of rights and law.

The judgment is particularly concerning and disappointing because it seemingly departs from the Court’s own case law in previous cases on the right to education of people with disabilities, such as in the leading case of Enver Şahin v. Turkey where the court found the failure of the state to ensure physical access to educational facilities amounted to discrimination.

The judgment was handed down by a Committee of the Court which is highly unusual. The procedure, set out under Article 34 of the European Convention on Human Rights, is generally reserved for cases which are regarded as being the subject of “well-established case law”. This means that no further appeal (known as a “referral”) is possible to the Grand Chamber of the Court. This weeks’ decision is final.

Commenting on the case, Steven Allen, Validity Co-Executive Director (Advocacy) said: “We are deeply disappointed by this decision which fails to protect Ştefan’s right to inclusive education. The judgment sends a worrying message to children and adults with disabilities that the Court views ‘reasonable accommodation’ as a matter of State policy, rather than rights. As the ‘Conscience of Europe’, the Court must be seen to be a strong defender of the rights of persons with disabilities. That has not happened in this case. We will undertake a careful legal analysis of the decision and want to open dialogue with the Court on how it addresses human rights claims of persons with disabilities. Validity expresses our solidarity with the family and legal team at this exceptionally difficult time.”

Validity Co-Executive Director (Litigation), Ann Campbell, added: “We have closely followed Stefan’s journey over the last six years since the case was filed at the European Court and submitted two separate third party interventions because we believe that the Romanian state has tragically failed him and his family. We had hoped that the European Court would uphold his rights and send a strong message that children with disabilities cannot be forgotten nor their dignity stripped from them. This judgment exposes a serious lacuna between the protections offered by the European Convention and those offered by the UN CRPD. It highlights how easily children like Stefan can fall between two stools if this vacuum is not consciously and consistently addressed by the Court. We know that this will not be the end of Stefan’s fight. We at Validity will also continue to fight for children with disabilities to access their rights in every way we can.”