Onder 3.9 Parket bij de Hoge Raad 24 juni 2016

“(…) 3. By the terms of the first sentence of this Article (P1-2), "no person shall be denied the right to education". In spite of its negative formulation, this provision uses the term "right" and speaks of a "right to education". Likewise the preamble to the Protocol specifies that the object of the Protocol lies in the collective enforcement of "rights and freedoms". There is therefore no doubt that Article 2 (P1-2) does enshrine a right. It remains however to determine the content of this right and the scope of the obligation which is thereby placed upon States. The negative formulation indicates, as is confirmed by the "preparatory work" (especially Docs. CM/WP VI (51) 7, page 4, and AS/JA (3) 13, page 4), that the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level. However, it cannot be concluded from this that the State has no positive obligation to ensure respect for such a right as is protected by Article 2 of the Protocol (P1-2). As a "right" does exist, it is secured, by virtue of Article 1 (art. 1) of the Convention, to everyone within the jurisdiction of a Contracting State. To determine the scope of the "right to education", within the meaning of the first sentence of Article 2 of the Protocol (P1-2), the Court must bear in mind the aim of this provision. It notes in this context that all member States of the Council of Europe possessed, at the time of the opening of the Protocol to their signature, and still do possess, a general and official educational system. There neither was, nor is now, therefore, any question of requiring each State to establish such a system, but merely of guaranteeing to persons subject to the jurisdiction of the Contracting Parties the right, in principle, to avail themselves of the means of instruction existing at a given time. The Convention lays down no specific obligations concerning the extent of these means and the manner of their organisation or subsidisation. In particular the first sentence of Article 2 (P1-2) does not specify the language in which education must be conducted in order that the right to education should be respected. (…) However the right to education would be meaningless if it did not imply in favour of its beneficiaries, the right to be educated in the national language or in one of the national languages, as the case may be.

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