E.P. and 44 other children v. Bosnia and Herzegovina

The authors of the communication are 45 nationals of the Islamic Republic of Iran or Iraq, between 5 and 17 years of age, who were all temporarily residing in the Salakovac Refugee Reception Centre, located in Mostar, Bosnia and Herzegovina, at the time of the submission of the communication. The authors allege that their lack of access to primary and secondary education constitutes a violation of their rights enshrined in articles 2, 4, 22 and 28 of the Convention. The authors are represented by counsel. The Optional Protocol entered into force for the State party on 17 August 2018.

The authors submit that there is a difference in the treatment of children of asylumseekers who are accommodated in the Salakovac Refugee Reception Centre, such as themselves, and children accommodated in other refugee reception centres. The authors state that the Salakovac Refugee Reception Centre was originally meant to accommodate recognized refugees and persons requiring international subsidiary protection. However, owing to an increase in the number of asylum-seekers, refugees and migrants arriving in the State party, the authorities decided to admit asylum-seekers to the centre, including families with children and unaccompanied children. The authors note that, at the time of the submission of the communication, they were not attending primary or secondary school because the Ministry of Education, Science, Culture and Sports of Herzegovina-Neretva Canton refused to grant them access to education, without any valid explanation.³

3. No further information is provided. ↩

The authors note that, in accordance with article 76 (1) (e) of the Law on Asylum of Bosnia and Herzegovina, asylum-seekers have the right to primary and secondary education, which they should be able to exercise within three months of the submission of a request for asylum. However, children accommodated in the Salakovac Refugee Reception Centre, including themselves, have had no access to education, unlike children accommodated in other reception sites located in, for example, Sarajevo or Una-Sana Canton.

The authors refer to the visit of the Special Rapporteur on the human rights of migrants, who stated that asylum-seeking children accommodated in the Salakovac Refugee Reception Centre did not have access to formal education.⁴ The authors contend that the issue of access to education for asylum-seeking children has been noted by the Committee and was addressed in its concluding observations on the combined fifth and sixth periodic reports of the State party.⁵

4. The authors refer to the statement issued by the Special Rapporteur on the human rights of migrants, Felipe González Morales, on 1 October 2019, following his visit to Bosnia and Herzegovina, available at https://www.ohchr.org/en/statements/2019/10/end-visit-statement-un-special-rapporteur-human-rights-migrants-felipe-gonzalez. ↩
5. CRC/C/BIH/CO/5-6, paras. 43 and 44. ↩

The authors claim that the State party has violated their rights enshrined in articles 2, 4, 22 and 28 of the Convention, as they do not have access to primary education. The authors argue that the State party has failed to undertake the measures necessary for the implementation of their rights, in particular the right to education and the right to be free from discrimination.

The authors contend that the State party should make primary education compulsory, available and free for all children, without any exemption and irrespective of the status of the children concerned. They state that, according to article 2 of the Convention, the rights of the child, including the right to education, should be ensured to each child without discrimination of any kind. They add that States parties should take all appropriate measures to ensure that children are protected against all forms of discrimination or punishment and add that those measures should be specific and targeted, bearing in mind that education must be accessible to all, in particular the most vulnerable groups.

The authors submit that, according to article 4 of the Convention, States parties are obliged to undertake all appropriate legislative, administrative and other measures for the implementation of their recognized rights. The authors recall that those measures should be undertaken to the maximum extent of available resources and, where necessary, within the framework of international cooperation.

The authors contend that domestic remedies have been exhausted, as the organization representing them submitted a complaint to the Institution of the Human Rights Ombudsman of Bosnia and Herzegovina, which had not been resolved at the time of the presentation of the communication to the Committee. They note that recommendations issued by that institution are not binding on the State party. The authors argue that, in practice, the establishment by that institution of a violation of the right to education would therefore be neither efficient nor effective.

On 17 December 2021, 24 October 2022 and 17 January 2023, the State party was requested to submit its observations on the admissibility and merits of the complaint. The Committee notes that it has received no response and regrets the unwillingness of the State party to cooperate by sharing its observations on the present complaint. It recalls that the State party is obliged, pursuant to the Optional Protocol, to submit to the Committee written explanations or statements clarifying the matter and indicating the measures, if any, that may have been taken to remedy the situation.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the claim is admissible under the Optional Protocol.

The Committee recalls that, in accordance with article 7 (e) of the Optional Protocol, it is to consider a communication inadmissible when the available domestic remedies have not all been exhausted, unless the application of the remedies is unreasonably prolonged or unlikely to bring effective relief.

The Committee takes note of the authors’ contention that domestic remedies have been exhausted by the presentation of a complaint to the Institution of the Human Rights Ombudsman. It notes that, as stated by the authors, the recommendations issued by that institution are not binding and therefore cannot be considered an effective remedy for the purposes of article 7 (e) of the Optional Protocol.⁶ The Committee also notes that a document presented to the Institution of the Ombudsman, which the authors annexed to their submission, refers to 26 asylum-seekers between the ages of 5 and 18 and not to the authors.

6. See, for example, A.S. v. Nepal (CCPR/C/115/D/2077/2011), para. 7.3. ↩

The Committee notes that the function of the requirement under article 7 (e) of the Optional Protocol to exhaust domestic remedies is to provide the State party with the opportunity to remedy an alleged violation of the Convention before the Committee addresses the same issue.⁷ The Committee recalls that authors must make use of all judicial or administrative avenues that may offer them a reasonable prospect of redress and that it considers that domestic remedies need not be exhausted if, objectively, they have no prospect of success, for example in cases where, under applicable domestic laws, the claim would inevitably be dismissed or where established jurisprudence of the highest domestic tribunals would preclude a positive result. Nevertheless, the Committee notes that mere doubts or assumptions about the success or effectiveness of remedies do not absolve the authors of the obligation to exhaust them.⁸ The Committee notes that the authors have not provided any justification as to why no attempt was made to present their case before any administrative or judicial body other than the Institution of the Human Rights Ombudsman.

7. See, for example Celal v. Greece (CCPR/C/82/D/1235/2003), para. 6.3; and Goekce et al. v. Austria (CEDAW/C/39/D/5/2005), para. 7.2. ↩
8. See, for example Sacchi et al. v. Argentina (CRC/C/88/D/104/2019), para. 10.17; D.C. v. Germany (CRC/C/83/D/60/2018), para. 6.5; and W.W. and S.W. v. Ireland (CRC/C/91/D/94/2019), para. 11.4. ↩

In the light of the foregoing, the Committee finds that the authors have not exhausted domestic remedies, as required by article 7 (e) of the Optional Protocol, and declares the communication inadmissible.

The Committee on the Rights of the Child therefore decides: (a) That the communication is inadmissible under article 7 (e) of the Optional Protocol; (b) That the present decision shall be transmitted to the authors of the communication and, for information, to the State party.