When Сourt-issued Refusal Helps Protect Child’s Right to Education

When the court decided to take sides with the Department of Education, the child’s parents received a phone call which told them that there was a vacant spot in a school for their son.

When Сourt-issued Refusal Helps Protect Child’s Right to Education

We covered the story of Arseniy Kovpan, a boy from Ukraine, numerous times (in February, April, September); his parents have been living and working in Moscow for several years now but haven’t been able to get their son into a city school for more than a year. The story began back in June 2016 when Arseniy’s parents applied to GBOU  «School №2065» to enroll him into first grade. Despite having a patent and other documents proving their legal right to reside in Russia, the family was denied enrollment by the school administration and was asked to provide “Temporary residence permit” or a «Residence permit». The administration refused to provide a response in writing.

That’s when the story began, with written requests sent to different institutions including the school itself, Moscow Department of Education, Commissioner for Children’s rights in Moscow, Prosecutor’s office and other state offices. Despite being informed of the situation and having been asked to assist, the Department of Education chose not to and replied with formal letters and nominally approved the school’s line of actions. The parents filed papers with the Prosecutor’s office who took the matter more seriously and sent a directive to eliminate violations to the school (which was now called GBOU “School № 2120”). This time the school administration still refused to enroll the child claiming the classes were now full. The parents finally initiated a complaint to the Meschansky district court. The court picked at the plaintiff for allegedly missing the application due date and refused to recognize the school’s actions as illegal. The judge wasn’t at all interested in the fact that the child was deprived of the possibility to study with other children and that the right to education guaranteed by the Constitution and several international conventions ratified by Russia was long violated. After that the parents tried to acquire the court resolution for about two months in order to appeal but no one answered the phone in the court registry and the office clerks were way too busy when asked in person. Once the Kovpan family finally got the resolution they applied to a higher institution.

The Moscow city court hearing took place back in late August but the text of the resolution was not ready and available until recently. This court also found no basis to point the school at violations of the right to education of the underage Arseniy Kovpan. Adults in the judicial panel fully took sides with the school, the Department of Education and the first-instance court. Such a big machine stood up against the right of a small child to study with similar children!

The new, long-awaited court-resolution had nothing particularly new compared to the ruling issued by the first-instance court. It once again had a brief and deficient description of the case. The judges did not consider substantially the very first written reply of the school with an illegal refusal to enroll the child. The resolution didn’t mention the illiterate statement of the school saying that migration registration “was not a document proving the foreign citizen’s registration at place of residence (temporary or permanent) on the territory of Russia” (letter of GBOU «School № 2065» d/d 05.07.2016). The judge wasn’t bothered by a similar reply from the Department of Education in Moscow (d/d 05.10.2016). It was easier for the judges to look past the inconvenient details which actually launched the whole story. Their attention was focused on the recent replies of the school which said that there were no available spots in the first-grade classes. When asked why the Department of Education offered no alternatives upon the parents’ request the judges used the red tape approach and casuistic wording claiming that the Kovpan family’s application “essentially included arguments of disagreement with actions and inactions of educational institutions’ employees and was in fact a complaint”. The judges were not interested in the fact that these complaints were based on the refusal to enroll the child and Article 8 of the Federal Law “On Education in Russian Federation” which states that educational capacities of territorial state authorities include among other issues “Providing state guarantees of the right to access free public pre-school education in municipal pre-school educational institutions, free public pre-school, general elementary, general basic, general secondary education”.

The judges reviewing the case obviously consider it plausible that the Department of Education, which is solely commissioned to guarantee compulsory secondary education, had done nothing for more than a year up until the court hearing to help Arseniy Kovpan join a school. The Prosecutor’s ruling was also ignored. Instead, the judges hid their outrageous decision behind the plaintiff’s missing of the statute of limitations (Article 219 of the Code of Administrative Court Proceedings of the Russian Federation which says that “…the administrative statement of claim may be submitted to court within three months from the day on which the citizen, organization, another person learned about the violation of their rights, freedoms and lawful interests”).

But the most interesting thing happened a month after the court hearing. Lawyer of the “Civic Assistance” Committee Gulnara Bobodzhanova leading the case sent an inquiry to the Department of Education once the court announced its decision. In her inquiry she described Arseniy Kovpan’s situation in short and asked for information as to how the child could exercise his right to education. The Department of Education formally replied in early October that the enrollment procedure was possible through the Moscow Public Services Portal. The letter also pointed out that the child could be denied admission if there were no spots available and the parents still had to provide a document proving the right to reside in the capital. The latter, an illegal requirement, proves that the Department of Education carries on the practice of limiting school access.

It’s difficult to explain what happened after that. But a few days later Arseniy’s father, Yuriy Kovpan, received a phone call from an employee of the Department of Education which is an unusual occurrence in itself. Said employee informed him that the child’s enrollment issue had been resolved favorably. Literally 10 minutes later Yuriy received another phone call, this time from the school which they previously wanted to join, they invited him to see the school principal at a convenient time. They were now expected by the principal himself although earlier even the secretary wasn’t eager to talk to them. Things just got better and better. The principal offered the parents any second-grade class in any school building they wanted! Finally, a child, deprived of the first grade education, joins a school and makes new friends!

How can this unusual courtesy be explained? It’s hard to tell but one can assume that the parent’s persistence and their readiness to reach the European Court of Human Rights trying to protect their child’s right to education played a major role.

 By Konstantin Troitskiy, Civic Assistance Committee

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