G.L. v. Italy: the inclusive course of the Strasbourg Case Law

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2020 saw the appearance of the book ‘Les grands arrêts en matière de handicap/ De belangrijkste arresten inzake handicap’. The book offers a compilation and critical analysis of the principal case law (at Belgian, European and international level) concerning persons with disabilities from various legal perspectives. In a series of posts we shine a light on various contributions to the book. In this post Marie Spinoy and Kurt Willems write a ‘sequel’ to their chapter on inclusive (higher) education in light of the new Strasbourg decision of G.L. v. Italy.  

In a (growing) number of cases the European Court of Human Rights has been asked to rule on the alleged violations of the right to education of learners with disabilities. The plaintiffs in these cases usually invoke both Article 2 of the First Protocol to the European Convention on Human Rights (right to education) and Article 14 of the European Convention on Human Rights (prohibition of discrimination). In accordance with its common interpretation practice, the Court has usually taken the relevant international benchmark of the UN Convention on the Rights of Persons with Disabilities (CRPD) into account. Article 24 of the CRPD contains both a (progressively realizable) right to inclusive education and a(n immediately applicable) right to reasonable accommodations. The precise role given to these rights in the ECtHR-case law however varied in different cases.

As we discuss in our chapter, in Çam and Enver Şahin the ECtHR referred to the CRPD and more specifically Article 24 CRPD as the international standard concerning education for learners with disabilities. In these cases it found the state in violation of its obligations as it had not provided reasonable accommodations. However, in the recent decision of Dupin the ECtHR made no mention of the CRPD and considered segregated and inclusive education as equivalent alternatives, thus reverting to its case law pre-dating the CRPD. The heavily criticized judgement of Stoian v. Romania similarly led to questions being asked on the Court’s understanding of disability rights. The Court deployed a very light touch in its analysis of the reasonable accommodations obligation and did not find any violation. Moreover, despite explicit mention by the plaintiff and intervening parties of the more structural duty to progressively work towards inclusive education and the state’s own admission of its delays in that regard, the Court shied away from assessing the state’s obligations to realize the right to inclusive education.

In its most recent decision of G.L. v. Italy, the Court reiterates the CRPD’s importance in its case law. Assessing the case from a reasonable accommodations-perspective, it finds that Italy’s failure to provide special assistance to a pupil with autism constituted a discriminatory violation of her right to education.

Inclusive education as the standard

The case concerned a girl with autism who had not received specialized assistance during two school years (at the start of primary school) even though this assistance was provided for in Italian law. The Court analysed the complaint under Article 14 ECHR combined with Article 2 Prot. I ECHR as it considered the alleged discrimination to be at the heart of the complaint.

Reaffirming the Çam-line of its case law, the ECtHR 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. Moreover, the Court considers an alleged violation in this primary school setting (as opposed to the previous higher education cases) to be all the more grave as primary education forms the basis of one’s education and social integration and one’s first experiences within society.

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 ECHR 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 reason 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, like the emphasis on primary education’s role in preparing children for life as a member of society, 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 therefore rightly be described as a case in which the court not only adopts the CRPD-rhetoric but ensures that the rights concerned are effective by connecting concrete and financial consequences to them. Thus, the ECtHR reaffirms a line of case law that will hopefully be confirmed and even further refined in the future.

Improving yet Incomplete Conformity

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. While integration implies that children can participate in mainstream education if they can meet the standards of the educational system, inclusion requires adjustments from the system, not the individual student. The CRPD requires inclusion as integration places a significantly higher burden on children with disabilities.

Moreover, uncertainty remains as to what duties apply under Article 2 Prot. I ECHR alone (inclusive education) as opposed to Article 14 ECHR and Article 2  Prot. I ECHR combined (non-discrimination in inclusive education, including reasonable accommodations).  That is a missed opportunity. First and foremost, these are two separate obligations for states with a separate effect; inclusive education being something that states can progressively work towards, whereas reasonable accommodation (as a non-discrimination duty) has immediate applicability. Not drawing a clear line between both rights will cause confusion among states (and schools, and teachers) concerning  what is expected of them. Moreover, it could hamper the realization of inclusive education, since cooperation by states and schools is crucial for the development of a more inclusive educational system.

It is of course true that both rights are also connected. In a country where schools on a systemic level are inclusive, individual accommodations will often be less costly and therefore more often be found reasonable. But this interrelationship makes the absence of any consideration of Member States’ obligations on inclusive education in the Court’s case law an even greater cause for concern. If states get an incentive not to move too quickly towards inclusive education, then the realization of reasonable accommodation suffers as well, since fewer accommodations will be reasonable. Yet, it is exactly that negative incentive that the current ECHR case law seems to be giving.

Thus, in Stoian, the Court noted that Romania, by its own admission, had encountered delays in implementing inclusive education. The Court did not see the need to go any further into this. It did not follow this observation by any assessment of the Romania’s efforts, nor did it give any indications of the obligations states should observe in this regard. Its focus immediately shifted onto reasonable accommodations and it deployed a lighter touch in its assessment than it had in previous cases . This lighter touch was understandable (although not inevitable as Çam and Enver Şahin demonstrate) given the difficult position the school was in to provide reasonable accommodations, and the effort it would have cost the state to make the accommodations work, given its delay in the implementation of inclusive education.

In G.L. however, we can see the opposite dynamic. The fact that the Italian legislator did what the Romanian government failed to do, i.e. consecrate the right to inclusive education in its legislation and provide for a right of the child to assistance in a regular school, is one of the elements that shifted the Court towards a conviction of Italy. Given the strict legal obligations Italy had set out for itself, the lack of assistance in itself was already an important element in the Court’s assessment. As a result, it seems the Court considered it could be more thorough in its assessments of the reasonable accommodations-obligations (see esp. §60).

While the finding of a violation in G.L. on the facts of the case overall seems justified (the legislative framework being only one among various considerations), the dangerous dynamic resulting from these two cases could increase the impunity of states that do not progress towards inclusive education and even create incentives for states not to evolve towards inclusive education. As it continues to refine its case law in this respect, the Court would do well to take this dynamic into account, all the more so as all Council of Europe states are bound by the CRPD’s obligations.

Marie Spinoy is a PhD-researcher on discrimination law at the Leuven Centre for Public Law.

Kurt Willems is Professor of Education Law and Administrative Law and Head of the Leuven Centre for Public Law. He is a judge in the Appeal Chamber for disciplinary measures against educators of subsidized schools and a member of the Council on pupils’ rights.

An earlier version of this post appeared on the Oxford Human Rights Hub.


Marie SPINOY & Kurt WILLEMS, "G.L. v. Italy: the inclusive course of the Strasbourg Case Law", Leuven Blog for Public Law, 13 August 2021, https://www.leuvenpubliclaw.com/g-l-v-italy-the-inclusive-course-of-the-strasbourg-case-law (geraadpleegd op 28 November 2021)

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