FOURTH SECTION
 
 
 
 
 
 
 
CASE OF FLĂMÎNZEANU v. ROMANIA
 
(Application no. 56443/11)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
 
 
 
 
STRASBOURG
 
19 March 2019
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Flămînzeanu v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
 Paulo Pinto de Albuquerque, President,
 Egidijus Kūris,
 Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 26 February 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 56443/11) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Marian Flămînzeanu (“the applicant”), on 1 February 2011. 2. The applicant, who had been granted legal aid, was represented by Ms N.T. Popescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that he had not been allowed to pursue his education while in Jilava Prison, in breach of Article 2 of Protocol No. 1 to the Convention. 4. On 26 January 2012 notice of the application was given to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1981 and lives in Milcovățu. In 2008 he was convicted of burglary and served a sentence of imprisonment until 30 August 2011, when he was conditionally released. 6. Between 2007 and 2009 the applicant completed the last two years of his primary education (grades III and IV) in Rahova Prison, within the framework of the “Second Chance” educational programme for prisoners. 7. Following a transfer to Jilava Prison, between May and August 2010 the applicant lodged three requests with the prison administration, asking to be enrolled in secondary education (the educational stage corresponding to grades V-VIII) as a fifth grade student. 8. On 29 July 2010 the Jilava prison governor wrote to the Ilfov County Schools Inspectorate (“the schools inspectorate”) pointing out that, under legislation enacted earlier that year (see paragraph 16 below), prisoners were required to receive compulsory education. He included information on the number and educational levels of the prisoners concerned and asked the schools inspectorate to consider the possibilities available to them to complete their compulsory education. In a reply of 24 August 2010 the schools inspectorate notified the prison governor that a class had been set up at School No. 1 in Jilava (“the school”) for primary education and that, as regards secondary education, it was necessary to submit, to the same school, the documents necessary for the prisoners’ enrolment, as required by ministerial Order no. 4370/2000 on part-time secondary education (see paragraph 18 below). 9. In the meantime, the prison administration informed the applicant that his request to be enrolled had been considered and that he was required to provide his academic record from his previous school. On 2 September 2010 the applicant gave his written consent for the prison administration to request his academic record. 10. On 21 September 2010 Jilava Prison and the school signed a collaboration protocol concerning the education of prisoners at primary and secondary level in the academic year 2010/2011. Following this, on 28 October 2010 the prison governor wrote to the school asking to be informed of the starting date of the secondary education courses. The letter also stated that the schools inspectorate had given its approval for the courses to be organised on the prison premises, that the conditions for organising them had been met, and that additional documents concerning the prisoners’ previous education were to be sent to the school once they became available. 11. On the same day the applicant lodged a complaint with the judge delegated to supervise the observance of prisoners’ rights (“the post‑sentencing judge”), alleging that the prison administration had violated his right to education. At a hearing of 29 October 2010 he stated that the prison administration had approved his request to be allowed to study, but had informed him that no teacher wished to teach in the prison. 12. While the proceedings before the post-sentencing judge were ongoing, in a letter of 4 November 2010 the school informed the prison administration that the prisoners’ enrolment applications did not contain the necessary documents, as required by ministerial Order no. 4370/2000 (see paragraph 18 below). The letter also pointed out, without reference to any individual situation, that academic records had been submitted in respect of only five of the sixteen prisoners who had requested to be enrolled. It then listed the number of prisoners who could potentially be enrolled in grades VI to VIII and concluded that it was not possible to arrange for teachers to teach each subject to a class containing only one student, as was the case in respect of grade VII. The letter also stated that the schools inspectorate had been notified accordingly. 13. In a decision of 16 November 2010 the post-sentencing judge dismissed the applicant’s complaint as ill-founded. The decision stated that the Education Act and the Execution of Sentences Act (see paragraphs 15‑16 below) imposed a positive obligation on prison administrations, together with the educational authorities, to ensure prisoners’ access to compulsory education. The prison administration had taken all the necessary steps to ensure that the applicant and other prisoners had access to secondary education in prison, in accordance with the law. In particular, it had duly approached the competent institutions, and on 29 October 2010 it had sent the school the applicant’s and other prisoners’ study documents and academic records. Therefore, the applicant’s inability to pursue his studies was not imputable to the prison administration, but to the insufficient number of students, which constituted an impediment to the establishment of a class for secondary education. 14. The applicant appealed against that decision. He argued that prison administrations were under a clear legal obligation to ensure prisoners’ access to secondary education, irrespective of their number. On 12 January 2011 the Bucharest County Court gave a final judgment which upheld the ruling made by the post-sentencing judge. It concluded that the applicant’s inability to continue his studies had been due to a situation outside of everyone’s control, namely an insufficient number of students to set up a class in accordance with the law. II. RELEVANT DOMESTIC LAW
15. The relevant provisions of Law no. 84/1995 on education (“the Education Act”), in force at the time of the events, provided:
Section 6
“Compulsory education lasts for ten years. The obligation to receive full-time 
ten-year education ends at the age of eighteen.”
... Section 158
“(1) In secondary education, classes shall contain on average twenty-five students, but no fewer than ten and no more than thirty. (2) In exceptional and justified cases ... a school ... may, with the approval of the schools inspectorate, function with fewer or more than the required minimum or maximum number of students.”
16. The relevant parts of Law no. 275/2006 on the execution of sentences (“the Execution of Sentences Act”), in force at the material time, read as follows:
Section 65
“(1) Primary, secondary and high school level education shall be organised in prisons. (1^1) Convicted persons are required to receive compulsory State education.
... (2) Classes for persons serving custodial sentences shall be organised and carried out as determined by the Ministry of Education, Research, Youth and Sport together with the Ministry of Justice, with staff made available and paid by the schools inspectorates ...”
17. The Regulation for the application of Law no. 275/2006, approved by Government Decision no. 1897/2006, in force at the relevant time, provided:
Section 177 – Organisation of tuition activities at primary, secondary and high school level
“(1) Convicted persons are required to receive compulsory education. (1^1) Administrations of detention facilities shall ensure the necessary conditions for the education of convicted persons at primary, secondary and high school level, in accordance with [the Education Act] and the conditions laid down in the 
inter-ministerial protocol between the Ministry of Education, Research, Youth and Sport and the Ministry of Justice concerning the education and training of convicted persons in the custody of the National Prisons Administration.
... (2) Courses for convicted persons shall be organised within the framework of the “Second Chance” programme. (3) With the support of the schools inspectorates ..., in every detention facility schools or classes shall be organised in affiliation with educational institutions operating outside the detention facility.”
Section 178 –Teaching staff
“Teaching staff necessary for the functioning of schools within detention facilities shall be made available and paid by the county schools inspectorates. Such staff shall be selected in collaboration with the administration of the detention facility.”
18. The relevant sections of Order no. 4370/2000 of the Ministry of Education establishing the methodology for the organisation and functioning of part-time classes in secondary education institutions, in force at the time of the events, provided:
Section 2
“Part-time secondary education shall be organised for those persons who have exceeded the age limit for being enrolled in full-time education or who, for social or medical reasons, are unable to attend full-time courses.”
Section 3
“Enrolment of students shall take place at the school secretariat, from 15 September to 1 October, on the basis of the following documents:
- an enrolment application; ...
- study documents (acte de studii) confirming the previously completed school years.
...”
Section 6
“Part-time secondary education classes shall contain the [same] number of students [as] that permitted by the legal provisions in force in respect of full-time education.”
19. Section 21(2) of the Regulation on study documents and academic records in respect of pre-university education, approved by Order no. 3502/2005 of the Ministry of Education and Research, in force at the relevant time, provided that study documents could be released, in general, to their holders (titularilor), and, in exceptional cases, to authorised persons [with] a power of attorney certified by a notary public or consulate. 20. Article 4 of Protocol no. 13343/2007 on the education of persons in the custody of the National Prisons Administration, concluded between the Ministry of Education, Research and Youth and the Ministry of Justice (“the inter-ministerial protocol”), as in force at the material time, provided that the education of prisoners was to be organised on the premises of detention facilities, in units or classes, in affiliation with institutions of the national education system. Under Article 9 §§ 1 and 2 of the inter-ministerial protocol, classes were to contain eight to twelve students but could be set up for four to six students in the case of prisoners with certain types of disabilities. III. RELEVANT INTERNATIONAL MATERIAL
A. United Nations
21. Article 26 of the Universal Declaration of Human Rights 1948 states:
“(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. ...”
22. Article 13 of the International Covenant on Economic, Social and Cultural Rights 1966 provides:
“1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, ... 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, ...”
23. In its General Comment No. 13 on the right to education (Article 13) 1999, the Committee on Economic, Social and Cultural Rights stated as follows:
“Article 13 (2): The right to receive an education – some general remarks
6. While the precise and appropriate application of the terms will depend upon the conditions prevailing in a particular State party, education in all its forms and at all levels shall exhibit the following interrelated and essential features:
(a) Availability – functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party. ... (b) Accessibility - educational institutions and programmes have to be accessible to everyone, ...
... Article 13 (2) (b): The right to secondary education
13. According to article 13 (2) (b), secondary education “shall be made generally available and accessible to all by every appropriate means, ...”. ... The phrase “every appropriate means” reinforces the point that States parties should adopt varied and innovative approaches to the delivery of secondary education in different social and cultural contexts.”
24. The UN Basic Principles for the Treatment of Prisoners 1990 provide:
“5. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, ... 6. All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.”
25. The UN Standard Rules for the Treatment of Prisoners 1955 contain the following provisions concerning the education of sentenced prisoners:
“Education and recreation
77. (1) Provision shall be made for the further education of all prisoners capable of profiting thereby, ... The education of illiterates and young prisoners shall be compulsory and special attention shall be paid to it by the administration. (2) So far as practicable, the education of prisoners shall be integrated with the educational system of the country so that after their release they may continue their education without difficulty. ...”
B. Council of Europe
26. The preamble to Recommendation No. (89) 12 on education in prison, adopted by the Committee of Ministers of the Council of Europe on 13 October 1989, states:
“Considering that the right to education is fundamental;
Considering the importance of education in the development of the individual and the community;
Realising in particular that a high proportion of prisoners have had very little successful educational experience, and therefore now have many educational needs;
Considering that education in prison helps to humanise prisons and to improve the conditions of detention;
Considering that education in prison is an important way of facilitating the return of the prisoner to the community; ...”
The Recommendation further states that:
“1. All prisoners shall have access to education, which is envisaged as consisting of classroom subjects, vocational education, creative and cultural activities, physical education and sports, social education and library facilities;
... 4. All those involved in the administration of the prison system and the management of prisons should facilitate and support education as much as possible;
... 17. The funds, equipment and teaching staff needed to enable prisoners to receive appropriate education should be made available.”
27. The relevant parts of Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, adopted on 11 January 2006, read as follows:
Part I
“Basic principles
1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. 5. Life in prison shall approximate as closely as possible the positive aspects of life in the community. 6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.
...”
Part II
“... Education
28.1 Every prison shall seek to provide all prisoners with access to educational programmes which are as comprehensive as possible and which meet their individual needs while taking into account their aspirations.
28.2 Priority shall be given to prisoners with literacy and numeracy needs and those who lack basic or vocational education.
...
28.7 As far as practicable, the education of prisoners shall:
a. be integrated with the educational and vocational training system of the country so that after their release they may continue their education and vocational training without difficulty; and
b. take place under the auspices of external educational institutions.
...”
Part VIII
“... Education of sentenced prisoners
106.1 A systematic programme of education, including skills training, with the objective of improving prisoners’ overall level of education as well as their prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners.”
IV. RELEVANT EUROPEAN UNION LAW
28. Article 14 of the Charter of Fundamental Rights of the European Union 2000 reads:
Right to education
“Everyone has the right to education ...”
THE LAW
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION
29. The applicant complained that he had been denied access to secondary education while he had been detained in Jilava Prison, in breach of Article 2 of Protocol No. 1, the relevant part of which reads as follows:
“No person shall be denied the right to education...”
A. Admissibility
30. The Government argued that the application had been submitted outside the six-month time-limit. They pointed out that the applicant had signed the application on 8 August 2011 and that the Court had received it on 16 August 2011 – more than six months after the date of the final domestic decision (12 January 2011). The applicant contested that argument. He submitted that he had written his application on 1 February 2011 and that the Court had received it on 11 February 2011. The application had contained his complaints and a request to be sent an official application form, which he had subsequently filled out and returned to the Court on the dates mentioned by the Government. 31. The Court observes that the final judgment of the Bucharest County Court was delivered on 12 January 2011 and that the applicant’s first communication including all relevant details of his application was his letter of 1 February 2011. It follows that he complied with the six-month time‑limit (see Zaieţ v. Romania, no. 44958/05, §§ 20-22, 24 March 2015). The Court therefore dismisses the Government’s objection. 32. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
33. The Government submitted that, according to the Court’s case-law, domestic authorities enjoyed a large margin of appreciation in regulating their education systems. The right to education mainly depended on the needs and resources of the community, and the domestic authorities had no obligation to set up ad hoc educational facilities for prisoners where such facilities were not already in place. 34. The Government also argued that the effects of the applicable legislation had been foreseeable, considering that the applicant had previously studied while in prison and had been familiar with the relevant internal procedures; moreover, he had been informed of his obligation to provide his academic record. The legislation pursued a legitimate aim, namely to ensure the proper organisation of courses and use of resources. The school’s decision not to enrol the applicant had been proportionate. The authorities had duly analysed the applicant’s request, but had rejected it in view of his failure to provide his record and the insufficient number of students to set up a class. However, even if the applicant had provided the necessary document to complete his file, an obligation to arrange courses for a grade V group of only three or four prisoners would have imposed an excessive financial burden on the authorities. Moreover, the applicant’s right to education had not been affected in its essence. It had only been in 2010 that the domestic authorities had been objectively prevented from organising the courses that would have been accessible to him. In any case, he had failed to provide any information on whether he had continued his studies after his release in August 2011. 35. The applicant submitted that the authorities’ refusal to grant him access to education had rendered his right to education illusory and had destroyed its very essence. Contrary to the Government’s submissions, he had not been in a position to provide his academic record. That was why he had given his consent to the prison administration to request them on his behalf. Moreover, it followed from the reasoning of the post-sentencing judge that the prisoners’ files, including his file, had been complete, and that the schools inspectorate had given its approval for the courses to be organised. As all the admission conditions had been met, it had not been open to the Government to invoke restrictions on the right of education on the basis of the needs and resources of the community and the distinctive features of different levels of education. Lastly, the applicant argued that the interference with his right to education had been disproportionate and had placed an excessive burden on him. 2. The Court’s assessment
(a)  General principles
36. The Court reiterates that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention (Hirst v. the United Kingdom (no. 2), [GC], no. 74025/01, § 69, ECHR 2005-IX). 37. As regards the right to education, while Article 2 of Protocol No. 1 cannot be interpreted as imposing a duty on the Contracting States to set up or subsidise particular educational institutions, any State doing so will be under an obligation to afford effective access to them. Put differently, access to educational institutions existing at a given time is an inherent part of the right set out in the first sentence of Article 2 of Protocol No. 1. This provision applies to primary, secondary and higher levels of education (see Velyo Velev v. Bulgaria, no. 16032/07, § 31, ECHR 2014 [extracts] and the case cited therein). 38. The Court however recognises that, in spite of its importance, the right to education is not absolute, but may be subject to limitations. Provided that there is no injury to the substance of the right, these limitations are permitted by implication since the right of access “by its very nature calls for regulation by the State”. In addition to ensuring that the restrictions that are imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court must satisfy itself that they are foreseeable for those concerned and pursue a legitimate aim. However, unlike the position with respect to Articles 8 to 11 of the Convention, it is not bound by an exhaustive list of “legitimate aims” under Article 2 of Protocol No. 1. Furthermore, a limitation will only be compatible with Article 2 of Protocol No. 1 if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Although the final decision as to the observance of the Convention’s requirements rests with the Court, the Contracting States enjoy a certain margin of appreciation in this sphere (ibid., § 32). 39. Admittedly, education is a very particular type of public service, which not only directly benefits those using it but also serves broader societal functions. Indeed, the Court has already had occasion to point out that “[i]n a democratic society, the right to education ... is indispensable to the furtherance of human rights [and] plays ... a fundamental role ...” (ibid., § 33). (b)  Application of these principles to the facts of the present case
40. The Court notes that in the present case an educational institution was designated to provide primary and secondary education to the inmates of Jilava prisoners, namely School No. 1 in Jilava (see paragraphs 8 and 10 above). Moreover, a collaboration protocol existed between the school and Jilava Prison concerning the education of prisoners in 2010/2011, the academic year in which the applicant had been detained in that prison. The documents in the Court’s possession also indicate that, in accordance with the domestic legislation, the prison had put in place the material conditions necessary for secondary education courses to be organised on its premises (see paragraphs 10 and 13 above). Therefore, the Court considers that the applicant’s complaint concerns his having been denied access, in 2010/2011, to a pre-existing educational institution. 41. The Court further notes that the relevant legislation not only placed a clear obligation on prisoners to participate in compulsory education, but on the prison and educational authorities to ensure prisoners’ access to such education. These obligations were not related to the prisoners’ age, although adults were required to attend part-time, rather than full-time courses. The legislation also set out the enrolment procedure and the required number of students per class. The minimum class size in respect of secondary education was ten students, or, in the case of prisoners, eight students. However, in “exceptional and justified cases” the Education Act allowed for derogations from the relevant mandatory class size (see paragraphs 15-20 above). 42. The Court has taken note of the Government’s argument that the applicant had knowingly failed to provide his academic record and had been aware of the procedures related to the organisation of courses in prisons. The Court notes in this connection that in refusing the applicant access to education, the authorities relied on two elements, namely the legislation concerning the documents required for enrolment and the minimum number of students necessary for setting up a secondary education class. 43. As regards the first element, however, the Court will have to base its assessment on the fact – established by the domestic courts – that the applicant’s and other prisoners’ academic records were sent to the school (see paragraph 13 above). The Court considers that the Government have not provided a convincing explanation as to why, despite this fact being established, the prison administration did not take any further steps to ensure that the applicant and other prisoners could be enrolled in secondary education. Instead, it appears that the prison administration passively accepted the school’s decision not to enrol the prisoners. The same can be said of the schools inspectorate, which was notified earlier of the school’s decision (see paragraph 12 above). 44. Regarding the second element, the Court finds no clear evidence in the material before it that the authorities ascertained the exact number of prisoners affected by the school’s decision. The Court observes that the school’s letter of 4 November 2010 contained no reference to the situation of prisoners like the applicant, who were to be enrolled in grade V. It only mentioned why a number of other prisoners could not be enrolled in the higher grades of secondary education (see paragraph 12 above). In addition, although the post-sentencing judge and the Bucharest County Court both endorsed the school’s argument that there were not enough prisoners to set up a secondary education class (see paragraphs 13-14 above), they did not explain how the legislation concerning the minimum number of students per class had been applied to the facts of the case before them. The Court notes that neither domestic court referred to the minimum class size of eight students stipulated in the inter-ministerial protocol of 2007 (see paragraph 20 above). 45. Furthermore, the Government argued that the legislation concerning the minimum number of students per class had pursued a legitimate aim, namely to ensure the proper organisation of educational activities and adequate use of resources. As far as its rationale is concerned, the Court recognises that education is an activity that is complex to organise and expensive to run, while the resources that the authorities can devote to it are necessarily finite (ibid., § 33). It is also true that in deciding how to regulate access to education, a State must strike a balance between, on the one hand, the educational needs of those under its jurisdiction and, on the other, its limited capacity to accommodate them (see Ponomaryovi v. Bulgaria, no. 5335/05, § 55, ECHR 2011). 46. In the present case, however, the Government have not provided any specific information as regards the available resources for organising courses in Jilava Prison or other evidence concerning the practical reasons for the applicant’s exclusion from pursuing compulsory education in that setting. The Court wishes to emphasise that any such reasons must be balanced with the applicant’s strong interest in continuing his studies and completing, in particular, his secondary education. Indeed, in today’s “knowledge-based” society, secondary education plays an ever-increasing role in the successful personal development and in the social and professional integration of the individuals concerned (see Ponomaryovi, cited above, § 57). 47. It is not for the Court to speculate as to the solutions that could have been adopted in order to ensure the applicant’s access to secondary education during his time in Jilava Prison. However, the Court finds no evidence to suggest that the authorities considered any potentially available alternatives, such as the possibility provided by the Education Act to derogate, in exceptional and justified cases, from the required number of students per class (see paragraph 15 above). While the Government have argued that the applicant’s request to be enrolled was properly considered, they have not provided any example of how his right to receive secondary education was balanced with any legitimate reason to keep him out of education for an entire year. On this point, the Court is also unable to reach a conclusion as to the impact of this measure on the applicant’s right in the light of the lack of information regarding his educational path following his conditional release in August 2011. In any event, the Court cannot but note the information provided to it by the Government, which shows that there were no secondary education classes organised for inmates of Jilava Prison in the 2011/2012 academic year either. 48. In these circumstances, the Court does not consider any of the arguments relied on by the Government to be persuasive in respect of the grounds for the restriction placed on the applicant in the period under review in this case. On the basis of the evidence before it, the Court does not find that the refusal to enrol the applicant in secondary education was sufficiently foreseeable or that it pursued a legitimate aim and was proportionate to that aim.

Outcome for Article P1-2: violation