CRPD/C/23/D/41/2017 6.6 Lastly, the authors reiterate their allegations with regard to the violation of articles 4, 7, 13, 15, 17 and 23 of the Convention. They have not received adequate protection from the administration or effective protection of their rights under the Convention and the State party’s Constitution. Rubén’s rights to equality and non-discrimination on the ground of his disability have been violated, which has had a grave impact on his dignity and moral integrity. 6.7 Order No. EDU/465/2017 of 13 June 2017, which continues to prop up a segregated special education system contrary to the Convention, was issued after the Committee had visited the State party. Following its visit, the Committee concluded that: “An inclusive system based on the right to non-discrimination and equal opportunities requires the abolition of the separate education system for students with disabilities.”13 Furthermore, the authors recall that Rubén’s parents were prosecuted on criminal charges of neglect for demanding the protection of Rubén’s right to inclusive education on an equal basis with others and that the very tough process of defending the fundamental right to inclusive education, which lasted more than seven years, took a high toll on their personal, family and social life and on their health and finances. They point to the Committee’s recommendation that the State party should “ensure that the parents of students with disabilities cannot be prosecuted for neglect if they demand that their children’s right to inclusive education on an equal footing be respected”. 14 They request “true and proper compliance with the Convention to prevent the repetition of these serious violations of the Convention, which are causing [Rubén] a great amount of actual harm, since he continues to suffer from a lack of protection from discrimination and the violation of his fundamental rights”. B. Committee’s consideration of admissibility and the merits Consideration of admissibility 7.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the case is admissible under the Optional Protocol. 7.2 The Committee notes that the authors submitted an application to the European Court of Human Rights based on the same facts as those presented to the Committee. By a decision of 13 November 2014, the European Court found that the application “did not meet the admissibility criteria set out in articles 34 and 35 of the Convention [on Human Rights]”. The Committee recalls that, when the European Court bases a declaration of inadmissibility not solely on procedural grounds but also on reasons that include a certain consideration of the merits of a case, “the same matter” should be deemed to have been examined within the meaning of article 2 (c) of the Optional Protocol. 15 However, given the brevity of the decision rendered by the European Court and, in particular, the absence of any argument or clarification explaining the rejection of the application on the merits, 16 the Committee is not in a position to determine with any certainty whether the case presented by the authors has already been the subject of an examination, however limited, on the merits. 17 The Committee thus finds that article 2 (c) of the Optional Protocol does not constitute a barrier with regard to the admissibility of the present communication. 7.3 The Committee notes the authors’ claim that they have exhausted all effective domestic remedies available to them. In the absence of any objection by the State party in that regard, the Committee considers that the requirements of article 2 (d) of the Optional Protocol have been met. 7.4 The Committee further notes the State party’s argument that the communication should be declared inadmissible because the authors’ request for reparation has been met, 13 14 15 16 17 8 CRPD/C/ESP/IR/1, para. 81. See also para. 79. Ibid., para. 84 (e). See, in this regard, V.F.C. v. Spain, (CRPD/C/21/D/34/2015), para. 7.2, and also Mahabir v. Austria (CCPR/C/82/D/944/2000), para. 8.3; Linderholm v. Croatia (CCPR/C/66/D/744/1997), para. 4.2; and A.M. v. Denmark (CCPR/C/16/D/121/1982), para. 6. V.F.C. v. Spain, para. 7.2; X v. Norway (CCPR/C/115/D/2474/2014), para. 6.2. V.F.C. v. Spain, para. 7.2; Mahabir v. Austria, para. 8.3. GE.20-12764