III. ÚS 1068/22
The case was first opened when the complainant was still a minor. The complainant is a person with a disability, specifically autism and mild intellectual disability. Therefore, he was a pupil with special educational needs within the meaning of the Education Act. The school counselling facility recommended the boy should receive pedagogical support. Therefore, before the boy started school, the headmaster asked the regional authority to establish a pedagogical assistant position and to provide funds for the assistant’s salary. However, the regional authority only provided funding for part-time work. The missing funds were first subsidised by the Labour Office and the municipal authority as the school’s founder. Over time, the school was no longer able to secure funding for the portion of the full-time position previously covered by the regional authority. Therefore, the school concluded a personal assistance contract with the boy’s mother. The purpose of the contract was to secure the parent’s financial participation in providing assistance for the complainant. As a result, the boy’s mother contributed CZK 5 900 per month to the assistant’s remuneration. This was “only” a personal assistance service, not support by a true pedagogical assistant. After a while, the complainant and his parents were no longer satisfied with having to pay the contribution in order for the boy to receive education. Arguing that the education should be provided free of charge, they subsequently turned to the institutions concerned and to the courts.
The complainant brought action against the primary school asserting claims under the Anti-Discrimination Act. In his opinion, the school violated his right to equal treatment by failing to provide free education and denying him reasonable accommodation as a person with a disability. He demanded a written apology and compensation in the amount of CZK 165 880, as well as adequate financial satisfaction in the amount of CZK 65 000 for the harm caused by the school’s discriminatory behaviour. The District Court dismissed the action. The court stated that the intervener had created the conditions for education in a “normal class”. Therefore, it did not refuse to educate the complainant in view of his disability and to integrate him with other pupils. On the complainant’s appeal, the Regional Court upheld the judgment of the District Court, only amending the order relating to the costs of the proceedings. The Supreme Court dismissed the complainants’ appeal on points of law in part and rejected the remaining part. In their constitutional complaint, the complainant and his legal guardian argued, first of all, that the school had failed to ensure the boy’s right to free education and that he had been subjected to discrimination on the grounds of his disability.
The Third Panel of the Constitutional Court (Justice Rapporteur Jiří Zemánek) upheld the complainant’s constitutional complaint. In particular, the general courts violated the complainant’s right to judicial protection, as well as his right to participate in the proceedings affecting him and for the case to be heard in his presence. Therefore, the Constitutional Court revoked the judgments of the District Court in Kolín of 26 June 2018 ref. No 12 C 447/2015-102; of the Regional Court in Prague of 12 June 2019 ref. No 21 Co 329/2018-305; and of the Supreme Court of 13 January 2022 ref. No 25 Cdo 244/2020-352.
The right to education is of profound importance to the life of any individual. It enables persons to develop their individual abilities, creates conditions for their self-realisation and future participation in society. Education has a profound effect on a person’s decisions about their own destiny and, in the broadest sense, on their pursuit of happiness. According to the Constitutional Court, education is also important for the democratic functioning of society as a whole. Everyone must be guaranteed equal and open access to education. The Constitutional Court considers the right to primary and secondary education, provided free of charge, to be an unconditional part of the right to education.
Under the Convention on the Rights of Persons with Disabilities, States Parties are obliged to take all appropriate measures to provide education to children with disabilities. As per the Convention, this is done by providing “reasonable accommodation”. Their aim of reasonable accommodation is to ensure that persons with disabilities can exercise or enjoy all human rights and fundamental freedoms on an equal basis with others. Reasonable accommodation to be provided by the school is limited by unreasonable or excessive burden on the school facilities.
The courts in this case did not address whether the part-time “mere” personal assistant (provided by the school and funded by the regional authority) covered the individual need for pedagogical assistance to the complainant to the extent necessary. The aim of educating children with disabilities in school with appropriate reasonable accommodation is to ensure the right to equal education. The school must demonstrate that it has made every effort to make reasonable accommodation to facilitate inclusion. Section 3(2) of the Anti-Discrimination Act implies that primary schools must take reasonable measures in relation to a person with a disability. This obligation can only be waived if the measure would impose an unreasonable burden on the school. Therefore, if the general courts come to the conclusion that an appropriate measure has not been provided by the obliged person, only then they must proceed to the next step – i.e. to assess whether the measure would be disproportionately burdensome for that person. One of the important factors in assessing whether a particular measure would impose an unreasonable burden on a school is undoubtedly the scope of financial support from the regional authority, as well as the possibility of funding the measure from other public funds (including the effort expended to obtain these funds). However, according to the Constitutional Court, free education means, among other things, that parents should not be by default required to pay for the assistance necessary for their child to receive education. The parent of a child should not be faced with the decision to either fund the child’s education or to deny their child the education they need.
The Constitutional Court further assessed the conduct of the proceedings. It acknowledged that disability can make it difficult to understand a situation or express opinions. However, the mere existence of a disability cannot be a reason for denying the right to be heard. Courts have a duty to consider very carefully when it is possible to limit the participation rights of a minor on the grounds that he or she is unable to sufficiently understand the issue at hand. Children with disabilities have the right to assistance appropriate to their disability and age, which applies to all types of disabilities. According to the Constitutional Court, in such cases the State must provide the means for the child to communicate with the court. The courts must ensure that the person with a disability is heard in the proceedings and can also make up their own mind about what the matter of the proceedings. According to the Constitutional Court, the restriction of the complainant’s rights of participation was not appropriate in his case.
The courts will now be tasked with rehearing the case. They must take evidence on the newly raised issues and assess whether prohibited discrimination has occurred due to the school’s failure to take reasonable steps within the meaning of the Anti-Discrimination Act. In the new proceedings, the courts will also have to respect the complainant’s right to be heard.