In today’s Chamber judgment1 in the case of Memlika v. Greece (application no. 37991/12) the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 2 of Protocol No. 1 (right to education) to the European Convention on Human Rights
The case concerned the exclusion of children aged 7 and 11 from school after they were wrongly diagnosed with leprosy.
The Court accepted that the children’s exclusion from school had pursued the legitimate aim of preventing any risk of contamination. Nevertheless, it considered that the delay in setting up the panel responsible for deciding on the children’s return to school had not been proportionate to the legitimate aim pursued. As the children had been prevented from attending classes for over three months, their exclusion had breached their right to education.
The applicants, Novrus and Leonora Memlika and their children Sebastian and Katerina Memlika, are Albanian nationals who were born in 1968, 1978, 2000 and 2004 respectively and live in Panaitolio Aitoloakarnania (Greece).
On 5 May 2011 Mr Memlika went to hospital where he underwent a series of tests. The director of the clinic informed him that he was suffering from leprosy (Hansen’s disease). On 16 May 2011 Mr Memlika’s wife and children were tested and the director told them that they too had leprosy. The members of the family were then admitted to hospital and were discharged on 2 June 2011. However, the regional public health director for western Greece warned them that the children should not return to school without the permission of the panel provided for in section 8 of Law no. 1137/1981.
On 30 June 2011 Mr Memlika attended a hospital specialising in infectious diseases. A series of tests showed that he was not suffering from leprosy. Mr Memlika notified the regional public health director for western Greece of the results and requested that the ban on his children attending school be lifted. On 15 July 2011 the regional director replied that the children could not return to school until the panel provided for by law had examined their case.
The school year began in early September and the panel was set up in November. On 8 December 2011 it examined the members of the Memlika family and found that none of them had leprosy. The following day Mrs Memlika took her children to school, but the head teacher refused to admit them until he had received a copy of the panel’s decision. On 12 December 2011 the children returned to school.
Decision of the Court
Article 2 of Protocol No. 1 (right to education) taken alone and in conjunction with Article 13 (right to an effective remedy)
The Court was mindful of the need for the authorities to take appropriate steps to avoid any risk of contamination. Consequently, the measure complained of had pursued a legitimate aim, namely to protect the health of the children and teachers at the school. Nevertheless, in order to ensure proportionality between the protection of the interests of the community and those of the individuals subjected to such measures, the authorities had a duty to act diligently and promptly. The measures, which were particularly restrictive and onerous, should be kept in place only for the time strictly required in order to achieve the desired aim and should be lifted as soon as the grounds for imposing them ceased to apply.
The Court noted that in the decision he took on 6 June 2011, after the Memlika family had been discharged from hospital on 2 June 2011, the regional public health director for western Greece had made clear that the family members no longer posed a risk of contamination to others. Nevertheless, on two occasions (on 2 June and again on 15 July 2011 after the diagnosis of the hospital specialising in the treatment of Hansen’s disease), he had made the children’s return to school contingent on the decision of the panel, although the latter had not yet been appointed. Despite the fact that the school year began in early September, the panel had not been formed until 21 November 2011 and had not examined the Memlika family until 8 December 2011.
In the Court’s view, this delay in taking action to allow the children to resume their schooling had not been proportionate to the legitimate aim pursued. Accordingly, the measure complained of had breached the children’s right to education, with particular reference to their access to their school. There had therefore been a violation of Article 2 of Protocol No. 1 to the Convention.
Article 41 (just satisfaction)
The Court held that Greece was to pay the applicants 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,000 in respect of costs and expenses.
Source: ECHR press release