GRAND CHAMBER
CASE OF D.H. AND OTHERS v. THE
(Application no.
57325/00)
JUDGMENT
13 November 2007
This judgment is final
but may be subject to editorial revision.
In the case of
D.H. and Others v. the
The European
Court of Human Rights (Second Section), sitting as a Grand Chamber composed of:
Sir Nicolas Bratza, President,
Mr B.M.
Zupančič,
Mr R.
Türmen,
Mr K. Jungwiert,
Mr J. Casadevall,
Mrs M.
Tsatsa-Nikolovska,
Mr K.
Traja,
Mr V. Zagrebelsky,
Mrs E. Steiner,
Mr J. Borrego Borrego,
Mrs A. Gyulumyan,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr J. Šikuta,
Mrs I. Ziemele,
Mr M. Villiger, judges,
and Mr M. O'Boyle,
Deputy Registrar,
Having
deliberated in private on 17 January and 19 September 2007,
Delivers the
following judgment, which was adopted on the last mentioned date:
PROCEDURE
1. The case originated in
an application (no. 57325/00) against the Czech Republic lodged with the Court
on 18 April 2000 under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by eighteen Czech nationals
(“the applicants”), whose details are set out in the annex to this judgment
(“the Annex”).
2. The applicants were
represented before the Court by the European Roma Rights Centre based in
Budapest, Lord Lester of Herne Hill, Q.C, Mr J. Goldston, of the New York
Bar, and Mr D. Strupek, a lawyer practising in the Czech Republic. The Czech
Government (“the Government”) were represented by their Agent, Mr V.A. Schorm.
3. The applicants alleged,
inter alia, that they had been
discriminated against in the enjoyment of their right to education on account
of their race or ethnic origin.
4. The application was
allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).
Within that Section, the Chamber that would consider the case (Article 27 § 1
of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 1
March 2005, following a hearing on admissibility and the merits (Rule 54 § 3),
the Chamber declared the application partly admissible.
6. On 7 February 2006 a
Chamber of that Section composed of the following judges: Mr J.-P. Costa, President,
Mr A.B. Baka, Mr I. Cabral Barreto, Mr K. Jungwiert, Mr V. Butkevych, Ms A.
Mularoni and Ms D. Jočienė, judges, and also of Mrs S.
Dollé, Section Registrar, delivered a judgment in which it held by six votes to
one that there had been no violation of Article 14 of the Convention, read in
conjunction with Article 2 of Protocol No. 1.
7. On 5 May 2006 the
applicants requested the referral of their case to the Grand Chamber in
accordance with Article 43 of the Convention. On 3 July 2006 a panel of
the Grand Chamber granted their request.
8. The composition of the
Grand Chamber was determined according to the provisions of Article 27 §§ 2 and
3 of the Convention and Rule 24 of the Rules of Court. At the final
deliberations, Mr K. Traja and Mr J. Casadevall, substitute judges, replaced Mr
C. Rozakis and Mr P. Lorenzen, who were unable to take part in the further
consideration of the case (Rule 24 § 3).
9. The applicants and the
Government each filed written observations on the merits. In addition,
third-party comments were received from various non-governmental organisations,
namely the International Step by Step Association, the Roma Education Fund and the
European Early Childhood Research Association; Interights and Human Rights Watch; Minority
Rights Group International, the European Network Against Racism and the
European Roma Information Office; and the Fédération
internationale des ligues des droits de l'Homme (International
Federation for Human Rights – FIDH), each of which had been given leave
by the President to intervene in the written procedure (Article 36 § 2 of the
Convention and Rule 44 § 2). The respondent Government replied to those
comments (Rule 44 § 5).
10. A hearing took place in
public in the
There appeared before
the Court:
(a) for the Government
Mr V.A. Schorm,
Agent,
Ms M. Kopsová,
Ms Z. Kaprová,
Ms J. Zapletalová,
Mr R.
Barinka,
Mr P.
Konůpka, Counsel;
(b) for the applicants
Lord Lester of Herne Hill, Q.C.,
Mr J. Goldston,
Mr D. Strupek,
Counsel.
The Court
heard addresses by Lord Lester of Herne Hill, Mr Goldston and Mr Strupek, and
by Mr Schorm.
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
11. Details of the
applicants' names and places of residence are set out in the Annex.
A. Historical
background
12. According to documents
available on the Internet site of the Roma and Travellers Division of the
Council of Europe, the Roma originated from the regions situated between
13. Although they have been
in
14. In the
As to the
number of Roma currently living in the
B. Special
schools
15. According to
information supplied by the Czech Government, the special schools (zvláštní školy) were established after
the First World War for children with special needs, including those suffering
from a mental or social handicap. The number of children placed in these
schools continued to rise (from 23,000 pupils in 1960 to 59,301 in 1988). Owing
to the entrance requirements of the primary schools (základní školy) and the
resulting selection process, prior to 1989 most Roma children attended special
school.
16. Under the terms of the
Schools Act (Law no. 29/1984), the legislation applicable in the present case,
special schools were a category of specialised school (speciální školy) and were intended for children with mental
deficiencies who were unable to attend “ordinary” or specialised primary
schools. Under the Act, the decision to place a child in a special school was
taken by the head teacher on the basis of the results of tests to measure the
child's intellectual capacity carried out in an educational psychology centre
and was subject to the consent of the child's legal guardian.
17. Following the switch to
the market economy in the 1990s, a number of changes were made to the system of
special schools in the
18. According to data supplied by the applicants, which was
obtained through questionnaires sent in 1999 to the head teachers of the 8
special schools and 69 primary schools in the town of Ostrava, the total number
of pupils placed in special schools in Ostrava came to 1,360, of whom 762 (56%)
were Roma. Conversely, Roma represented only 2.26% of the total of 33,372
primary-school pupils in
According to
data from the European Monitoring Centre for Racism and Xenophobia (now the
European Union Agency for Fundamental Rights), more than half of Roma children
in the Czech Republic attend special schools.
The Advisory
Committee on the Framework Convention for the Protection of National Minorities
observed in its report of 26 October 2005 that, according to unofficial
estimates, the Roma represent up to 70% of pupils enrolled in special schools.
Lastly, according to a comparison of data on fifteen countries,
including countries from Europe, Asia and North America, gathered by the OECD
in 1999 and cited in the observations of the International Step by Step
Association, the Roma Education Fund and the European Early Childhood Research
Association[1], the
Czech Republic ranked second highest in terms of placing children with physiological
impairments in special schools and in third place in the table of countries
placing children with learning difficulties in such schools. Further, of the
eight countries who had provided data on the schooling of children whose
difficulties arose from social factors, the
C. The
facts of the instant case
19. Between 1996 and 1999
the applicants were placed in special schools in
20. The material before the
Court shows that the applicants' parents had consented to and in some instances
expressly requested their children's placement in a special school. Consent was
indicated by signing a pre-completed form. In the case of applicants nos. 12 and 16 the dates on the forms are
later than the dates of the decisions to place the children in special schools.
In both instances, the date has been corrected by hand, on one occasion is
accompanied by a note from the teacher citing a typing error.
The decisions
on placement were then taken by the head teachers of the special schools
concerned after referring to the recommendations of the educational psychology
centres where the applicants had undergone psychological tests. The applicants'
school files contained the report on their examination, including the results
of the tests with the examiners' comments, drawings by the children and, in a
number of cases, a questionnaire for the parents.
The written
decision concerning the placement was sent to the children's parents. It
contained instructions on the right to appeal, a right which none of the
applicants exercised.
21. On 29 June 1999 the
applicants received a letter from the school authorities informing them of the
possibilities available for transferring from special school to primary school.
It would appear that four of the applicants (nos. 5, 6, 11 and 16 in
the Annex) were successful in aptitude tests and thereafter attended ordinary
schools.
22. In the review and
appeals procedures referred to below, the applicants were represented by a
lawyer acting on the basis of signed written authorities from their parents.
1. Request
for a reconsideration of the case outside the formal appeal procedure
23. On 15 June 1999 all the
applicants apart from those numbered 1, 2, 10 and 12 in the Annex asked the
Ostrava Education Authority (Školský
úřad) to reconsider, outside the formal appeal procedure (přezkoumání mimo odvolací řízení),
the administrative decisions to place them in special schools. They argued that
their intellectual capacity had not been reliably tested and that their representatives
had not been adequately informed of the consequences of consenting to their
placement in a special school. They therefore asked the Education Authority to
revoke the impugned decisions, which they maintained did not comply with the
statutory requirements and infringed their right to education without
discrimination.
24. On 10 September 1999
the Education Authority informed the applicants that, as the impugned decisions
complied with the legislation, the conditions for bringing proceedings outside
the appeal procedure were not satisfied in their case.
2. Constitutional
appeal
25. On 15 June 1999
applicants nos. 1 to 12 in the Annex lodged a constitutional appeal in which
they complained, inter alia, of de facto discrimination in the general
functioning of the special education system. In that connection, they relied on,
inter alia, Articles 3 and 14 of the
Convention and Article 2 of Protocol No. 1. While acknowledging that they had
not appealed against the decisions to place them in special schools, they
alleged that they had not been sufficiently informed of the consequences of
placement and argued (on the question of the exhaustion of remedies) that their
case concerned continuing violations and issues that went far beyond their
personal interests.
In their
grounds of appeal, the applicants explained that they had been placed in
special schools under a practice that had been established in order to
implement the relevant statutory rules. In their submission, that practice had
resulted in de facto racial
segregation and discrimination that were reflected in the existence of two separately
organised educational systems for members of different racial groups, namely
special schools for the Roma and “ordinary” primary schools for the majority of
the population. That difference in treatment was not based on any objective and
reasonable justification, amounted to degrading treatment and had deprived them
of the right to education (as the curriculum followed in special schools was
inferior and pupils in special schools were unable to return to primary school
or to obtain a secondary education other than in a vocational training centre).
Arguing that they had received an inadequate education and an affront to their
dignity, the applicants asked the Constitutional Court (Ústavní soud) to find a
violation of their rights, to quash the decisions to place them in special
schools, to order the respondents (the special schools concerned, the Ostrava
Education Authority and the Ministry of Education) to refrain from any further
violation of their rights and to restore the status quo ante by offering them compensatory lessons.
26. In their written
submissions to the
The Education
Authority pointed out in its written submissions that the special schools had
their own legal personality, that the impugned decisions contained advice on
the right of appeal and that the applicants had at no stage contacted the
schools inspectorate.
The Ministry
of Education denied any discrimination and noted a tendency on the part of the parents
of Roma children to have a rather negative attitude to school work. It asserted
that each placement in a special school was preceded by an assessment of the
child's intellectual capacity and that parental consent was a decisive factor.
It further noted that there were 18 educational assistants of Roma origin in
schools in
27. In their final written
submissions, the applicants pointed out (i) that there was nothing in their
school files to show that their progress was being regularly monitored with a
view to a possible transfer to primary school, (ii) that the reports from the
educational psychology centres contained no information on the tests that were
used and (iii) that their recommendations for placement in a special school
were based on grounds such as an insufficient command of the Czech language, an
over-tolerant attitude on the part of the parents or an ill-adapted social
environment. They also argued that the gaps in their education made a transfer
to primary school impossible in practice and that social or cultural
differences could not justify the alleged difference in treatment.
28. On 20 October 1999 the
(a) With
regard to the complaint of a violation of the applicants' rights as a result of
their placement in special schools, the Constitutional Court held that, as only
five decisions had actually been referred to in the notice of appeal, it had no
jurisdiction to decide the cases of those applicants who had not appealed
against the decisions concerned.
As to the
five applicants who had lodged constitutional appeals against the decisions to
place them in special schools (nos. 1, 2, 3, 5 and 9 in the Annex), the
Constitutional Court decided to disregard the fact that they had not lodged
ordinary appeals against those decisions, as it agreed that the scope of their
constitutional appeals went beyond their personal interests. However, it found
that there was nothing in the material before it to show that the relevant
statutory provisions had been interpreted or applied unconstitutionally, since
the decisions had been taken by head teachers vested with the necessary
authority on the basis of recommendations by educational psychology centres and
with the consent of the applicants' representatives.
(b) With
regard to the complaints of insufficient monitoring of the applicants' progress
at school and of racial discrimination, the
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A. The
Schools Act 1984 (Law no. 29/1984 – since repealed by
Law no. 561/2004, which came into force on 1 January 2005)
29. Prior to 18 February
2000 section 19(1) of the Schools Act provided that to be eligible for
secondary-school education pupils had to have successfully completed their
primary-school education.
Following
amendment no. 19/2000, which came into force on 18 February 2000, the
amended section 19(1) provided that to be eligible for secondary-school
education pupils had to have completed their compulsory education and
demonstrated during the admission procedure that they satisfied the conditions
of eligibility for their chosen course.
30. Section 31(1) provided
that special schools were intended for children with “mental deficiencies” (rozumové nedostatky) that prevented them
from following the curricula in ordinary primary schools or in specialised
primary schools (speciální základní škola)
intended for children suffering from sensory impairment, illness or disability.
B. The
Schools Act 2004 (Law no. 561/2004)
31. This new Act on school
education no longer provides for special schools in the form that had existed
prior to its entry into force. Primary education is now provided by primary
schools and specialised primary schools, the latter being intended for pupils
with severe mental disability or multiple disabilities and for autistic
children.
32. Section 16 contains
provisions governing the education of children and pupils with special
educational needs. These are defined in subsection 1 as children suffering from
a disability, health problems or a social disadvantage. Section 16(4) provides
that for the purposes of the Act a child is socially disadvantaged, inter alia, if it comes from a family
environment with low socio-cultural status or at risk of socio-pathological
phenomena. Subsection 5 provides that the existence of special educational
needs is to be assessed by an educational guidance centre.
33. The Act also makes
provision, inter alia, for
educational assistants, individualised education projects, preparatory classes
for socially disadvantaged children prior to the period of compulsory school
education and additional lessons for pupils who have not received a basic
education.
C. Decree
no. 127/1997 on specialised schools (since repealed by Decree no. 73/2005,
which came into force on 17 February 2005)
34. Article 2 § 4 of the
Decree laid down that the following schools were available for pupils suffering
from mental disability: specialised nursery schools (speciální mateřské školy), special schools, auxiliary schools
(pomocné školy), vocational training
centres (odborná učiliště)
and practical training schools (praktické
školy).
35. Article 6 § 2
stipulated that if during the pupil's school career there was a change in the
nature of his or her disability or if the specialised school was no longer
adapted to the level of disability, the head teacher of the school attended by
the pupil was required, after an interview with the pupil's representative, to
recommend the pupil's placement in another specialised school or an ordinary
school.
36. Article 7 § 1 stipulated
that the decision to place a pupil in or transfer a pupil to, inter alia, a special school was to be
taken by the head teacher, provided that the pupil's legal guardians consented.
Article 7 § 2 provided that a proposal for a pupil to be placed, inter alia, in a special school could be
made to the head teacher by the pupil's legal guardian, the pupil's current school,
an educational psychology centre, a hospital or clinic, an authority with
responsibility for family and child welfare or a health centre. In the event of
the pupil not receiving a place in a special school, the head teacher was
required by Article 7 § 3 to notify the pupil's legal guardian and the
competent school authority or the municipality in which the pupil was
permanently resident of the decision. The education authority was then
required, after consulting the municipality, to make a proposal regarding the
school in which the pupil would receive his or her compulsory education.
Article 7 § 4 required the educational psychology centre to assemble all the
documents relevant to the decision and to make a recommendation to the head
teacher regarding the type of school.
D. Decree
no. 73/2005 on the education of children, pupils and students with special
educational needs and gifted children, pupils and students
37. Article 1 of the Decree
provides that pupils and students with special educational needs are to be
educated with the help of support measures that go beyond or are different from
the individualised educational and organisational measures available in
ordinary schools.
38. Article 2 provides that
children whose special educational needs have been established with the aid of
an educational or psychological examination performed by an educational
guidance centre will receive special schooling if they have clear and
compelling needs that warrant their placement in a special education system.
E. Domestic
practice at the material time
1. Psychological
examination
39. The testing of
intellectual capacity in an educational psychology centre with the consent of
the child's legal guardians was neither compulsory nor automatic. The
recommendation for the child to sit the tests was generally made by teachers –
either when the child first enrolled at the school or if difficulties were
noted in its ordinary primary-school education – or by paediatricians.
40. According to the applicants, who cited experts in this
field, the most commonly used tests appeared to be variants of the 'Wechsler
Intelligence Scale for Children' (PDW and WISC III) and the 'Stanford-Binet
Intelligence test'. Citing various opinions, including those of teachers and
psychologists and the head of the special-schools department at the Czech Ministry
of Education in February 1999, the applicants submitted that the tests used
were neither objective nor reliable, as they had been devised solely for Czech
children, and had not recently been standardised or approved for use with Roma
children. Moreover, no measures had been taken to enable Roma children to
overcome their cultural and linguistic disadvantages in the tests. Nor had any
instructions been given to restrict the latitude that was given in the
administration of the tests and the interpretation of the results. The
applicants also drew attention to a 2002 report in which the Czech schools
inspectorate noted that children without any significant mental deficiencies
were still being placed in special schools.
41. In the report submitted
by the
The Advisory
Committee on the Framework Convention noted in its first report on the Czech
Republic, which was published on 25 January 2002, that while these schools were
designed for mentally handicapped children, it appeared that many Roma children
who were not mentally handicapped were placed in them owing to real or
perceived language and cultural differences between Roma and the majority. The
Committee stressed that “placing children in such special schools should take
place only when it is absolutely necessary and always on the basis of
consistent, objective and comprehensive tests”.
In its second
report on the Czech Republic published on 26 October 2005 the Advisory
Committee observed: “Tests and methods used to assess children's intellectual
abilities upon school enrolment have already been revised with a view to
ensuring that they are not misused to the detriment of Roma children”. However,
it noted with concern that “revision of the psychological tests used in this
context has not had a marked impact. According to unofficial estimates, Roma
account for up to 70% of pupils in the [special] schools, and this – having
regard to the percentage of Roma in the population – raises doubts concerning
the tests' validity and the relevant methodology followed in practice”.
42. In its report on the
In its next
report on the
43. In his final report on the Human Rights Situation of the
Roma, Sinti and Travellers in
44. According to the observations submitted by the International
Step by Step Association, the Roma Education Fund and the European Early Childhood
Research Association, countries in east central and south eastern Europe
typically lacked national definitions of “disability” (related to the placement
of students in special schools) and used definitions in which some form of
disability was connected to the socio-cultural background of the child, thus
leaving the door to discriminatory practices open. Data on children with
disabilities were drawn largely from administrative sources rather than being
derived from a thorough assessment of the actual characteristics of the child.
Thus, divisive practices and the use of a single test were common in the 1990s.
It is alleged in the observations that the assessment used to place Roma
children in special schools in the
Thus, the assessment of Roma children in the
According to studies cited in these observations (UNICEF, Innocenti Insight
(2005); Save the Children (2000), 'Denied a future: The right to education of
Roma/Gypsy and Traveller children'; D.J. Losen and G. Orfield (2002), 'Introduction:
Racial inequity in special education' (Cambridge, MA: Harvard Education Press)),
disproportionately placing certain groups of students in special education
resulted from an array of factors, including “unconscious racial bias on the
part of school authorities, large resource inequalities, an unjustifiable
reliance on IQ and other evaluation tools, educators' inappropriate responses
to the pressures of high-stakes testing, and power differentials between
minority parents and school officials”. Thus, school placement through
psychological testing often reflected racial biases in the society concerned.
45. The
respondent Government observed that the unification of European norms used by
psychologists was currently under way and that the State authorities had taken
all reasonable steps to ensure that the psychological tests were administered
by appropriately qualified experts with university degrees applying the latest
professional and ethical standards in their specialised field. In addition, research conducted in
1997 by Czech experts at the request of the Ministry of Education showed that
Roma children had attained in a standard test of intelligence (WISC III) only
insignificantly lower results than comparable non-Roma Czech children (one
point on the IQ scale).
2. Consent
to placement in a special school
46. Article 7 of Decree no.
127/1997 on specialised schools made the consent of the legal guardians a
condition sine qua non for the child's
placement in a special school. The applicants noted that the Czech legislation
did not require the consent to be in writing. Nor did information on the
education provided by special schools or the consequences of the child's
placement in a special school have to be provided beforehand.
47. In its report on the
In its report
on the Czech Republic published in June 2004, ECRI noted that when deciding
whether or not to give their consent, parents of Roma children “continued to
lack information concerning the long-term negative consequences of sending
their children to such schools, which were often presented to parents as an
opportunity for their children to receive specialised attention and be with
other Roma children”.
48. According to
information obtained by the FIDH from
its Czech affiliate, many schools in the
3. Consequences
49. Pupils in special
schools follow a special curriculum supposedly adapted to their intellectual
capacity. After completing their course of compulsory education in this type of
school, they may elect to continue their studies in vocational training centres
or, since 18 February 2000, in other forms of secondary school (provided they
are able to establish during the admissions procedure that they satisfy the
entrance requirements for their chosen course).
Further,
Article 6 § 2 of Decree no. 127/1997 stipulated that if during the pupil's
school career there was a change in the nature of his or her disability or if
the specialised school was no longer adapted to the level of disability, the
head teacher of the school attended by the child or pupil was required, after
an interview with the pupil's guardian, to recommend the pupil's placement in
another specialised school or in an ordinary school.
50. In his final report on
the Human Rights Situation of the Roma, Sinti and Travellers in Europe dated 15
February 2006, the Commissioner for Human Rights noted: “Being subjected to
special schools or classes often means that these children follow a curriculum inferior
to those of mainstream classes, which diminishes their opportunities for
further education and for finding employment in the future. The automatic
placement of Roma children in classes for children with special needs is likely
to increase the stigma by labelling the Roma children as less intelligent and
less capable. At the same time, segregated education denies both the Roma and
non-Roma children the chance to know each other and to learn to live as equal
citizens. It excludes Roma children from mainstream society at the very
beginning of their lives, increasing the risk of their being caught in the
vicious circle of marginalisation”.
51. The Advisory Committee
on the Framework Convention for the Protection of National Minorities noted in
its second report on the
52. According to the observations
submitted by the International Step by Step Association, the Roma Education
Fund and the European Early Childhood Research Association, the
placement of children in segregated special schools was an example of a very
early “tracking” of students, in this case by assigning children perceived to
be of “low ability” or “low potential” to special schools from an early age.
Such practices increased educational inequity as they had especially negative
effects on the achievement levels of disadvantaged children (see, inter alia, the communication to the Council and the European
Parliament on 'efficiency and equity in the European education and training
systems' (COM/2006/0481, 8 September 2006)). The longer-term consequences of “tracking”
included pupils being channelled towards less prestigious forms of education
and training and pupils dropping out of school early. Tracking could thus help create
a social construction of failure.
53. In their
observations to the Court, the organisations Minority Rights Group
International, European Network against Racism and European Roma Information
Office noted that children in special schools followed a simplified curriculum
that was considered appropriate for their lower level of development. Thus, in
the
III. COUNCIL
OF
A. The
Committee of Ministers
Recommendation
No. R (2000) 4 of the Committee of Ministers to member states on the education
of Roma/Gypsy children in
54. The recommendation provides as follows:
“The Committee
of Ministers, under the terms of Article 15.b of the Statute of the Council of
Europe,
Considering
that the aim of the Council of Europe is to achieve greater unity between its
members and that this aim may be pursued, in particular, through common action
in the field of education;
Recognising
that there is an urgent need to build new foundations for future educational
strategies toward the Roma/Gypsy people in Europe, particularly in view of the
high rates of illiteracy or semi-literacy among them, their high drop-out rate,
the low percentage of students completing primary education and the persistence
of features such as low school attendance;
Noting that
the problems faced by Roma/Gypsies in the field of schooling are largely the
result of long-standing educational policies of the past, which led either to
assimilation or to segregation of Roma/Gypsy children at school on the grounds
that they were 'socially and culturally handicapped';
Considering
that the disadvantaged position of Roma/Gypsies in European societies cannot be
overcome unless equality of opportunity in the field of education is guaranteed
for Roma/Gypsy children;
Considering
that the education of Roma/Gypsy children should be a priority in national
policies in favour of Roma/Gypsies;
Bearing in
mind that policies aimed at addressing the problems faced by Roma/Gypsies in
the field of education should be comprehensive, based on an acknowledgement
that the issue of schooling for Roma/Gypsy children is linked with a wide range
of other factors and pre-conditions, namely the economic, social and cultural
aspects, and the fight against racism and discrimination;
Bearing in
mind that educational policies in favour of Roma/Gypsy children should be
backed up by an active adult education and vocational education policy; ...
Recommends
that in implementing their education policies the governments of the member
states:
– be guided by
the principles set out in the appendix to this Recommendation;
– bring this
Recommendation to the attention of the relevant public bodies in their respective
countries through the appropriate national channels.”
55. The
relevant sections of the Appendix to Recommendation No. R (2000) 4
read as follows:
“Guiding principles of an education policy
for Roma/Gypsy children in
I. Structures
1. Educational
policies for Roma/Gypsy children should be accompanied by adequate resources
and the flexible structures necessary to meet the diversity of the Roma/Gypsy
population in
2. Emphasis
should be put on the need to better co-ordinate the international, national,
regional and local levels in order to avoid dispersion of efforts and to
promote synergies.
3. To
this end member states should make the Ministries of Education sensitive to the
question of education of Roma/Gypsy children.
4. In
order to secure access to school for Roma/Gypsy children, pre-school education
schemes should be widely developed and made accessible to them.
5. Particular
attention should also be paid to the need to ensure better communication with
parents, where necessary using mediators from the Roma/Gypsy community which
could then lead to specific career possibilities. Special information and
advice should be given to parents about the necessity of education and about
the support mechanisms that municipalities can offer families. There has to be
mutual understanding between parents and schools. The parents' exclusion and
lack of knowledge and education (even illiteracy) also prevent children from
benefiting from the education system.
6. Appropriate
support structures should be set up in order to enable Roma/Gypsy children to
benefit, in particular through positive action, from equal opportunities at
school.
7. The
member states are invited to provide the necessary means to implement the
above-mentioned policies and arrangements in order to close the gap between
Roma/Gypsy pupils and majority pupils.
II. Curriculum
and teaching material
8. Educational
policies in favour of Roma/Gypsy children should be implemented in the
framework of broader intercultural policies, taking into account the particular
features of the Romani culture and the disadvantaged position of many
Roma/Gypsies in the member states.
9. The
curriculum, on the whole, and the teaching material should therefore be
designed so as to take into account the cultural identity of Roma/Gypsy
children. Romani history and culture should be introduced in the teaching
material in order to reflect the cultural identity of Roma/Gypsy children. The
participation of representatives of the Roma/Gypsy community should be encouraged
in the development of teaching material on the history, culture or language of
the Roma/Gypsies.
10. However,
the member states should ensure that this does not lead to the establishment of
separate curricula, which might lead to the setting up of separate classes.
11. The
member states should also encourage the development of teaching material based
on good practices in order to assist teachers in their daily work with
Roma/Gypsy pupils.
12. In the
countries where the Romani language is spoken, opportunities to learn in the
mother tongue should be offered at school to Roma/Gypsy children.
III.
13. It
is important that future teachers should be provided with specific knowledge
and training to help them understand better their Roma/Gypsy pupils. The
education of Roma/Gypsy pupils should however remain an integral part of the
general educational system.
14. The
Roma/Gypsy community should be involved in the designing of such curricula and
should be directly involved in the delivery of information to future teachers.
15. Support
should also be given to the training and recruitment of teachers from within
the Roma/Gypsy community.
...”
B. The
Parliamentary Assembly
1. Recommendation
no. 1203 (1993) on Gypsies in
56. The Parliamentary Assembly made, inter alia, the following general observations:
“One of the
aims of the Council of Europe is to promote the emergence of a genuine European
cultural identity. Europe harbours many different cultures, all of them,
including the many minority cultures, enriching and contributing to the
cultural diversity of
A special
place among the minorities is reserved for Gypsies. Living scattered all over
As a
non-territorial minority, Gypsies greatly contribute to the cultural diversity
of
With central
and east European countries now member states, the number of Gypsies living in
the area of the Council of Europe has increased drastically.
Intolerance of
Gypsies by others has existed throughout the ages. Outbursts of racial or
social hatred, however, occur more and more regularly, and the strained
relations between communities have contributed to the deplorable situation in
which the majority of Gypsies lives today.
Respect for
the rights of Gypsies, individual, fundamental and human rights and their
rights as a minority is essential to improve their situation.
Guarantees for
equal rights, equal chances, equal treatment, and measures to improve their situation
will make a revival of Gypsy language and culture possible, thus enriching the
European cultural diversity.
The guarantee
of the enjoyment of the rights and freedoms set forth in Article 14 of the
European Convention on Human Rights is important for Gypsies as it enables them
to maintain their individual rights.
...”
57. As far as education is
concerned, the Recommendation states:
“The existing
European programmes for training teachers of Gypsies should be extended;
Special
attention should be paid to the education of women in general and mothers
together with their younger children;
Talented young
Gypsies should be encouraged to study and to act as intermediaries for Gypsies;
...”
2. Recommendation no. 1557 (2002): 'The legal situation of Roma in
Europe'
58. This
recommendation states, inter alia:
“...
3. Today Roma are still subjected to
discrimination, marginalisation and segregation. Discrimination is widespread
in every field of public and personal life, including access to public places,
education, employment, health services and housing, as well as crossing borders
and access to asylum procedures. Marginalisation and the economic and social
segregation of Roma are turning into ethnic discrimination, which usually
affects the weakest social groups.
4. Roma form a special minority
group, in so far as they have a double minority status. They are an ethnic
community and most of them belong to the socially disadvantaged groups of
society.
...
15. The Council of
...
c. to
guarantee equal treatment for the Romany minority as an ethnic or national
minority group in the field of education, employment, housing, health and
public services. Member states should give special attention to:
i. promoting equal opportunities for
Roma on the labour market;
ii. providing the possibility for
Romany students to participate in all levels of education from kindergarten to
university;
iii. developing positive measures to
recruit Roma in public services of direct relevance to Roma communities, such
as primary and secondary schools, social welfare centres, local primary health
care centres and local administration;
iv. eradicating all practices of
segregated schooling for Romany children, particularly that of routing Romany
children to schools or classes for the mentally disabled;
d. to
develop and implement positive action and preferential treatment for the
socially deprived strata, including Roma as a socially disadvantaged community,
in the field of education, employment and housing...;
e. to take
specific measures and create special institutions for the protection of the
Romany language, culture, traditions and identity:
...
ii. to encourage Romany parents to
send their children to primary school, secondary school and higher education,
including college or university, and give them adequate information about the
necessity of education;
...
v. to recruit Roma teaching staff,
particularly in areas with a large Romany population;
f. to
combat racism, xenophobia and intolerance and to ensure non-discriminatory
treatment of Roma at local, regional, national and international levels:
...
vi. to pay particular attention to the phenomenon
of the discrimination against Roma, especially in the fields of education and
employment;
...”
C. The
European Commission against Racism and Intolerance (ECRI)
1. ECRI
general policy recommendation no. 3: 'Combating racism and intolerance against
Roma/Gypsies' (adopted by ECRI on 6 March 1998)
59. The relevant sections
of this recommendation state:
“The European
Commission against Racism and Intolerance:
...
Recalling that
combating racism, xenophobia, antisemitism and intolerance forms an integral
part of the protection and promotion of human rights, that these rights are
universal and indivisible, and that all human beings, without any distinction
whatsoever, are entitled to these rights;
Stressing that
combating racism, xenophobia, antisemitism and intolerance is above all a
matter of protecting the rights of vulnerable members of society;
Convinced that
in any action to combat racism and discrimination, emphasis should be placed on
the victim and the improvement of his or her situation;
Noting that
Roma/Gypsies suffer throughout Europe from persisting prejudices, are victims
of a racism which is deeply-rooted in society, are the target of sometimes
violent demonstrations of racism and intolerance and that their fundamental
rights are regularly violated or threatened;
Noting also
that the persisting prejudices against Roma/Gypsies lead to discrimination
against them in many fields of social and economic life, and that such
discrimination is a major factor in the process of social exclusion affecting
many Roma/Gypsies;
Convinced that
the promotion of the principle of tolerance is a guarantee of the preservation
of open and pluralistic societies allowing for a peaceful co-existence;
recommends the
following to Governments of member States:
...
– to ensure
that discrimination as such, as well as discriminatory practices, are combated
through adequate legislation and to introduce into civil law specific
provisions to this end, particularly in the fields of employment, housing and
education;
...
– to
vigorously combat all forms of school segregation towards Roma/Gypsy children
and to ensure the effective enjoyment of equal access to education;
...”
2. ECRI
general policy recommendation no. 7 on national legislation to combat racism
and racial discrimination (adopted by ECRI on 13 December 2002)
60. The following definitions are used for the purposes of this
Recommendation:
“a) 'racism'
shall mean the belief that a ground such as race, colour, language, religion,
nationality or national or ethnic origin justifies contempt for a person or a
group of persons, or the notion of superiority of a person or a group of
persons.
b) 'direct
racial discrimination' shall mean any differential treatment based on a ground
such as race, colour, language, religion, nationality or national or ethnic
origin, which has no objective and reasonable justification. Differential
treatment has no objective and reasonable justification if it does not pursue a
legitimate aim or if there is not a reasonable relationship of proportionality between
the means employed and the aim sought to be realised.
c) 'indirect
racial discrimination' shall mean cases where an apparently neutral factor such
as a provision, criterion or practice cannot be as easily complied with by, or
disadvantages, persons belonging to a group designated by a ground such as
race, colour, language, religion, nationality or national or ethnic origin,
unless this factor has an objective and reasonable justification. This latter
would be the case if it pursues a legitimate aim and if there is a reasonable
relationship of proportionality between the means employed and the aim sought
to be realised.
61. In the explanatory memorandum to this recommendation, it is
noted (point 8) that the definitions of direct and indirect racial
discrimination contained in paragraph 1 b) and c) of the Recommendation draw
inspiration from those contained in Council Directive 2000/43/EC implementing
the principle of equal treatment between persons irrespective of racial or ethnic
origin and in Council Directive 2000/78/EC establishing a general framework for
equal treatment in employment and occupation and on the case-law of the
European Court of Human Rights.
3. The
report on the
62. In the section of the
report dealing with the policy aspects of education and training, ECRI stated
that public opinion appeared sometimes to be rather negative towards certain
groups, especially the Roma/Gypsy community, and suggested that further
measures should be taken to raise public awareness of the issues of racism and
intolerance and to improve tolerance towards all groups in society. It added
that special measures should be taken as regards the education and training of
the members of minority groups, particularly members of the Roma/Gypsy
community.
4. The
report on the
63. In this report, ECRI stated that
the disadvantages and effective discrimination faced by members of the
Roma/Gypsy community in the field of education was of particularly serious
concern. It was noted that Roma/Gypsy children were vastly over-represented in
special schools and that their channelling to special schools was reported to
be often quasi-automatic. Roma/Gypsy parents often favoured this solution,
partly to avoid abuse from non-Roma/Gypsy children in ordinary schools and
isolation of the child from other neighbourhood Roma/Gypsy children, and partly
owing to a relatively low level of interest in education. Most Roma/Gypsy
children were consequently relegated to educational facilities designed for
other purposes, offering little opportunity for skills training or educational
preparation and therefore very limited opportunity for further study or
employment. Participation of members of the Roma/Gypsy community in education
beyond the primary school level was extremely rare.
64. ECRI therefore considered that the practice of channelling
Roma/Gypsy children into special schools for the mentally-retarded should be
fully examined, to ensure that any testing used was fair and that the true
abilities of each child were properly evaluated. ECRI also considered that it
was fundamental that Roma/Gypsy parents should be made aware of the need for
their children to attend regular education. In general, ECRI
considered that there was a need for closer involvement of members of the
Roma/Gypsy community in matters concerning education. As a start, the
authorities needed to ensure that Roma/Gypsy parents were kept fully informed
of measures taken and were encouraged to participate in educational decisions
affecting their children.
5. The
report on the
65. With regard to the
access of Roma children to education, ECRI said in this report that it was
concerned that Roma children continued to be sent to special schools which,
besides perpetuating their segregation from mainstream society, severely
disadvantaged them for the rest of their lives. The standardised test developed
by the Czech Ministry of Education for assessing a child's mental level was not
mandatory and was only one of a battery of tools and methods recommended to the
psychological counselling centres. As to the other element required in order to
send a child to a special school – the consent of the child's legal guardian –
ECRI observed that parents making such decisions continued to lack information
concerning the long-term negative consequences of sending their children to
such schools, which were often presented to parents as an opportunity for their
children to receive specialised help and be with other Roma children. ECRI also
said that it had received reports of Roma parents being turned away from ordinary
schools.
ECRI also
noted that the Schools Act had entered into force in January 2000 and provided
the opportunity for pupils from special schools to apply for admission to
secondary schools. According to various sources, that remained largely a theoretical
possibility as special schools did not provide children with the knowledge
required to follow the secondary-school curriculum. There were no measures in
place to provide additional education to pupils who had gone through the
special school system to bring them to a level where they would be adequately
prepared for ordinary secondary schools.
ECRI had
received very positive feedback concerning the success of 'zero grade courses'
(preparatory classes) at pre-school level in increasing the number of Roma
children who attended ordinary schools. It expressed its concern, however, over
a new trend to maintain the system of segregated education in a new form – this
involved special classes in mainstream schools. In that connection, a number of
concerned actors were worried that the proposed new Schools Act created the
possibility for even further separation of Roma through the introduction of a
new category of special programmes for the “socially disadvantaged”.
Lastly, ECRI
noted that despite initiatives taken by the Ministry of Education (classroom assistants,
training programmes for teachers, revision of the primary school curriculum),
the problem of low levels of Roma participation in secondary and higher
education that had been described by ECRI in its second report persisted.
D. Framework
Convention for the Protection of National Minorities
1. The
report submitted by the Czech Republic on 1 April 1999 pursuant to Article 25 §
1 of the Framework Convention for the Protection of National Minorities
66. The report stated that the Government had adopted measures
in the education sphere that were focused on providing suitable conditions
especially for children from socially and culturally disadvantaged
environments, in particular the Roma community, by opening preparatory classes
in elementary and special schools. It was noted that “Romany children with
average or above-average intellect are often placed in such schools on the
basis of results of psychological tests (this happens always with the consent
of the parents). These tests are conceived for the majority population and do
not take Romany specifics into consideration. Work is being done on
restructuring these tests”. In some special schools Roma pupils made up between
80% and 90% of the total number of pupils.
2. The
report submitted by the
67. The
In the field
of Roma education, the report said that the State had taken various measures of
affirmative action in order to radically change the present situation of Roma
children. The Government regarded the practice of referring large numbers of
Roma children to special schools as untenable. The need for affirmative action
was due not only to the socio-cultural handicap of Roma children, but also to
the nature of the whole education system and its inability to sufficiently
reflect cultural differences. The proposed new Schools Act would bring changes
to the special education system by transforming “special schools” into “special
primary schools”, thus providing the children targeted assistance in overcoming
their socio-cultural handicap. These included preparatory classes, individual
study programmes for children in special schools, measures concerning
pre-school education, an expanded role for assistants from the Roma community
and specialised teacher-training programmes. As one of the main problems
encountered by Roma pupils was their poor command of the Czech language, the
Ministry of Education considered that the best solution (and the only realistic
one) would be to provide preparatory classes at the pre-school stage for
children from disadvantaged socio-cultural backgrounds.
The report
also cited a number of projects and programmes that had been implemented
nationally in this sphere ('Support for Roma integration', 'Programme for Roma
integration/Multicultural education reform', and 'Reintegrating Roma special
school pupils in primary schools').
3. Opinion
on the Czech Republic of the Advisory Committee on the Framework Convention for
the Protection of National Minorities, published on 25 January 2002
68. The Advisory Committee noted that while the special schools
were designed for mentally handicapped children, it appeared that many Roma
children who were not mentally handicapped were placed in these schools due to
real or perceived language and cultural differences between Roma and the
majority. It considered that this practice was not compatible with the
Framework Convention and stressed that placing children in such schools should
take place only when absolutely necessary and always on the basis of
consistent, objective and comprehensive tests.
69. The special schools had
led to a high level of separation of Roma pupils from others and to a low level
of educational skills in the Roma community. This was recognised by the Czech
authorities. Both governmental and civil society actors agreed on the need for
a major reform. There was however disagreement about the precise nature of the
reform to be carried out, the amount of resources to be made available and the
speed with which reforms were being implemented. The Advisory Committee was of
the opinion that the Czech authorities ought to develop the reform, in
consultation with the persons concerned, so as to ensure equal opportunities
for access to schools for Roma children and equal rights to an ordinary
education, in accordance with the principles set out in Committee of Ministers
Recommendation No. (2000) 4 on the education of Roma/Gypsy children in
70. The Advisory Committee
noted with approval the initiatives that had been taken to establish so-called
zero-classes, allowing the preparation of Roma children for basic school
education, inter alia, by improving
their Czech language skills, and encouraged the authorities to make these
facilities more broadly available. It also considered the creation of posts of
Roma pedagogical advisors in schools, a civil society initiative, to be a most
positive step. The Advisory Committee encouraged the State authorities in their
efforts to ensure the increase and development of such posts. A further crucial
objective was to ensure a much higher number of Roma children had access to and
successfully completed secondary education.
4. The
Advisory Committee's opinion on the Czech Republic, published on 26 October
2005
71. In this opinion, the
Advisory Committee noted that the authorities were genuinely committed to
improving the educational situation of Roma children, and were trying, in
various ways, to realise this aim in practice. In that connection, it noted
that it was too early to determine whether the revised educational system
introduced by the new Schools Act (Law no. 561/2004) would substantially
change the existing situation of over-representation of Roma children in
special schools or special classes.
72. The Advisory Committee noted that the authorities were
paying special attention to the unjustified placement of Roma children in
special schools. Tests and methods used to assess children's intellectual
abilities upon school enrolment had already been revised with a view to
ensuring that they were not misused to the detriment of Roma children. Special
educational programmes had been launched to help Roma children overcome their
problems. These included waiving fees for the last year of pre-school
education, relaxing the rules on minimum class sizes, more individualised
education, appointing educational assistants (mostly Roma), as well as
producing methodological handbooks and guidelines for teachers working with
Roma children. Preparatory pre-school classes had also been organised for Roma
children, and had worked well, although on a fairly limited scale. To
accommodate all the children concerned, these measures needed to be applied
more widely. The Advisory Committee also took note of the special support
programme for Roma access to secondary and higher education, and of the efforts
that had been made to build up a network of qualified Roma teachers and
educational assistants.
73. The Advisory Committee
noted, however, that although constant monitoring and evaluation of the school
situation of Roma children was one of the Government's priorities, the State
Report said little about the extent to which they were currently integrated in
schools, or the effectiveness and impact of the many measures that had been
taken for them. It noted with concern that the measures had produced few
improvements and that local authorities did not systematically implement the
Government's school support scheme and did not always have the determination
needed to act effectively in this field.
74. The Advisory Committee
noted with concern that, according to non-governmental sources, a considerable
number of Roma children were still being placed in special schools at a very
early age, and that revision of the psychological tests used in this context
had not had a marked impact. According to unofficial estimates, Roma accounted
for up to 70% of pupils in these schools, and this – having regard to the
percentage of Roma in the population – raised doubts concerning the tests'
validity and the methodology followed. This situation was made all the more
disturbing by the fact that it also made it more difficult for Roma children to
gain access to other levels of education, thus reducing their chances of
integrating in society. Although legislation no longer prevented children from
advancing from special to ordinary secondary schools, the level of education
offered by special schools generally did not make it possible to cope with the
requirements of secondary schools, with the result that most dropped out of the
system. Although estimates of the number of Roma children who remained outside
the school system varied, those who did attend school rarely advanced beyond
primary school.
75. In addition, the
Advisory Committee noted that, in spite of the awareness-raising initiatives
taken by the Ministry of Education, many of the Roma children who attended
ordinary schools were isolated by other children and by teaching staff, or even
placed in separate classes. At the same time, it was recognised that in some
schools Roma children were the largest pupil-group simply because the schools
concerned were located near the places where Roma resided compactly. According
to other sources, material conditions in some of the schools they attended were
precarious and the teaching they received was still, in most cases,
insufficiently adapted to their situation. It was important to ensure that
these schools, too, provided quality education.
76. According to the
Advisory Committee priority had to go to placing Roma children in ordinary
schools, supporting and promoting preparatory classes and also to educational
assistants. Recruiting Roma teaching staff, and making all education staff
aware of the specific situation of Roma children also needed to receive
increased attention. An active involvement on the part of the parents, in
particular with regard to the implementation of the new Schools Act, also
needed to be promoted as a condition sine
qua non for the overall improvement of the educational situation of the
Roma. Lastly, more determined action was needed to combat isolation of Roma children
in both ordinary and special schools. A clearer approach, coupled with
instructions and immediate action on all levels, was needed to put an end to
unjustified placement of these children in special schools designed for
children with mental disabilities. Effective monitoring measures, particularly
designed to eliminate undue placement of children in such schools, had to be
one of the authorities' constant priorities.
E. Commissioner
for Human Rights
Final Report by Mr Alvaro Gil-Robles on the
Human-Rights Situation of the Roma, Sinti and Travellers in
77. In the third section of the report, which concerns
discrimination in education, the Commissioner noted that the fact that a
significant number of Roma children did not have access to education of a
similar standard enjoyed by other children was in part a result of
discriminatory practices and prejudices. In that connection, he noted that
segregation in education was a common feature in many Council of Europe member
States. In some countries there were segregated schools in segregated
settlements, in others special classes for Roma children in ordinary schools or
a clear over-representation of Roma children in classes for children with special
needs. Roma children were frequently placed in classes for children with
special needs without an adequate psychological or pedagogical assessment, the
real criteria clearly being their ethnic origin. Being subjected to special
schools or classes often meant that these children followed a curriculum
inferior to those of mainstream classes, which diminished their opportunities
for further education and for finding employment in the future. The automatic
placement of Roma children in classes for children with special needs was
likely to increase the stigma by labelling the Roma children as less
intelligent and less capable. At the same time, segregated education denied
both the Roma and non-Roma children the chance to know each other and to learn
to live as equal citizens. It excluded Roma children from mainstream society at
the very beginning of their lives, increasing the risk of their being caught in
the vicious circle of marginalisation.
78. In the
79. It was also noted that
special classes or special curricula for the Roma had been introduced with good
intentions, for the purposes of overcoming language barriers or remedying the
lack of pre-school attendance of Roma children. Evidently, it was necessary to
respond to such challenges, but segregation or systematic placement of Roma
children in classes which followed a simplified or a special Romani-language
curriculum while isolating them from other pupils was clearly a distorted
response. Instead of segregation, significant emphasis had to be placed on
measures such as pre-school and in-school educational and linguistic support as
well as the provision of school assistants to work alongside teachers. In
certain communities, it was crucial to raise the awareness of Roma parents, who
themselves might not have had the possibility to attend school, of the necessity
and benefits of adequate education for their children.
80. In conclusion, the
Commissioner made a number of recommendations related to education. Where
segregated education still existed in one form or another, it had to be replaced
by ordinary integrated education and, where appropriate, banned through
legislation. Adequate resources had to be made available for the provision of
pre-school education, language training and school assistant training in order
to ensure the success of desegregation efforts. Adequate assessment had to be
made before children were placed in special classes, in order to ensure that
the sole criterion in the placement was the objective needs of the child, not
his or her ethnicity.
IV. RELEVANT
COMMUNITY LAW AND PRACTICE
81. The principle
prohibiting discrimination or requiring equality of treatment is well
established in a large body of Community law instruments based on Article 13 of
the Treaty instituting the European Community. This provision enables the
Council, through a unanimous decision following a proposal/recommendation by
the Commission and consultation of the European Parliament, to take the
measures necessary to combat discrimination based on sex, race or ethnic origin,
religion or belief, disability, age or sexual orientation.
82. Thus, Article 2 § 2 of Council Directive 97/80/EC of 15
December 1997 on the burden of proof in cases of discrimination based on sex
provides: “Indirect discrimination shall exist where an apparently neutral
provision, criterion or practice disadvantages a substantially higher
proportion of the members of one sex unless that provision, criterion or
practice is appropriate and necessary and can be justified by objective factors
unrelated to sex”. Article 4 § 1, which concerns the burden of proof, reads:
“Member States shall take such measures as are necessary, in accordance with
their national judicial systems, to ensure that, when persons who consider
themselves wronged because the principle of equal treatment has not been
applied to them establish, before a court or other competent authority, facts
from which it may be presumed that there has been direct or indirect
discrimination, it shall be for the respondent to prove that there has been no
breach of the principle of equal treatment”.
83. Similarly, the aim of Council Directive 2000/43/EC of 29
June 2000 implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin and of Council Directive 2000/78/EC of
27 November 2000 establishing a general framework for equal treatment in
employment and occupation is to prohibit in their respective spheres all direct
or indirect discrimination based on race, ethnic origin, religion or belief,
disability, age or sexual orientation. The preambles to these Directives state
as follows: “The appreciation of the facts from which it may be inferred that
there has been direct or indirect discrimination is a matter for national judicial
or other competent bodies, in accordance with rules of national law or
practice. Such rules may provide, in particular, for indirect discrimination to
be established by any means including on the basis of statistical evidence” and
“The rules on the burden of proof must be adapted when there is a prima facie
case of discrimination and, for the principle of equal treatment to be applied
effectively, the burden of proof must shift back to the respondent when
evidence of such discrimination is brought”.
84. In particular, Directive 2000/43/EC provides as follows in
Articles 2 (Concept of discrimination) and 8 (Burden of proof):
Article 2
“1. For
the purposes of this Directive, the principle of equal treatment shall mean
that there shall be no direct or indirect discrimination based on racial or
ethnic origin.
2. For
the purposes of paragraph 1:
(a) direct
discrimination shall be taken to occur where one person is treated less
favourably than another is, has been or would be treated in a comparable
situation on grounds of racial or ethnic origin;
(b) indirect
discrimination shall be taken to occur where an apparently neutral provision,
criterion or practice would put persons of a racial or ethnic origin at a
particular disadvantage compared with other persons, unless that provision,
criterion or practice is objectively justified by a legitimate aim and the
means of achieving that aim are appropriate and necessary.
...”
Article 8
“1. Member
States shall take such measures as are necessary, in accordance with their
national judicial systems, to ensure that, when persons who consider themselves
wronged because the principle of equal treatment has not been applied to them
establish, before a court or other competent authority, facts from which it may
be presumed that there has been direct or indirect discrimination, it shall be
for the respondent to prove that there has been no breach of the principle of
equal treatment.
2. Paragraph
1 shall not prevent Member States from introducing rules of evidence which are
more favourable to plaintiffs.
3. Paragraph
1 shall not apply to criminal procedures.
...
5. Member
States need not apply paragraph 1 to proceedings in which it is for the court
or competent body to investigate the facts of the case.”
85. Under the case-law of
the Court of Justice of the European Communities (CJEC), discrimination, which
entails the application of different rules to comparable situations or the
application of the same rule to different situations, may be overt or covert
and direct or indirect.
86. In its
Giovanni Maria Sotgiu v. Deutsche
Bundespost judgment of 12 February 1974 (Case 152-73, point 11), the
CJEC stated:
“... the rules
regarding equality of treatment ... forbid not only overt discrimination by
reason of nationality but also all covert forms of discrimination which, by the
application of other criteria of differentiation, lead in fact to the same
result...”
87. In its Bilka-Kaufhaus GmbH v. Karin Weber von Hartz
judgment of 13 May 1986 (Case 170/84, point 31), it stated:
“... Article
119 of the EEC Treaty is infringed by a department store company which excludes
part-time employees from its occupational pension scheme, where that exclusion
affects a far greater number of women than men, unless the undertaking shows
that the exclusion is based on objectively justified factors unrelated to any
discrimination on grounds of sex.”
88. In Regina v.
Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez (judgment of 9 February 1999,
Case C-167/97, points 51, 57, 62, 65 and 77), the CJEC observed:
“... the
national court seeks to ascertain the legal test for establishing whether a
measure adopted by a
... the
Commission proposes a 'statistically significant' test, whereby statistics must
form an adequate basis of comparison and the national court must ensure that
they are not distorted by factors specific to the case. The existence of
statistically significant evidence is enough to establish disproportionate
impact and pass the onus to the author of the allegedly discriminatory measure.
It is also for
the national court to assess whether the statistics concerning the situation
... are valid and can be taken into account, that is to say, whether they cover
enough individuals, whether they illustrate purely fortuitous or short-term
phenomena, and whether, in general, they appear to be significant (see Case
C-127/92 Enderby [1993] ECR I-5535, paragraph 17). ...
Accordingly,
... in order to establish whether a measure adopted by a Member State has
disparate effect as between men and women to such a degree as to amount to
indirect discrimination for the purposes of Article 119 of the Treaty, the
national court must verify whether the statistics available indicate that a
considerably smaller percentage of women than men is able to fulfil the
requirement imposed by that measure. If that is the case, there is indirect sex
discrimination, unless that measure is justified by objective factors unrelated
to any discrimination based on sex.
...
... if a
considerably smaller percentage of women than men is capable of fulfilling the
requirement ... imposed by the disputed rule, it is for the Member State, as
the author of the allegedly discriminatory rule, to show that the said rule
reflects a legitimate aim of its social policy, that that aim is unrelated to
any discrimination based on sex, and that it could reasonably consider that the
means chosen were suitable for attaining that aim.”
89. In its judgment of 23 October 2003 in Hilde Schönheit v. Stadt Frankfurt am Main (Case C-4/02) and Silvia Becker v. Land Hessen (Case
C-5/02), the CJEC noted at points 67-69 and 71:
“... it must
be borne in mind that Article 119 of the Treaty and Article 141(1) and (2) EC
set out the principle that men and women should receive equal pay for equal
work. That principle precludes not only the application of provisions leading
to direct sex discrimination, but also the application of provisions which
maintain different treatment between men and women at work as a result of the
application of criteria not based on sex where those differences of treatment
are not attributable to objective factors unrelated to sex discrimination...
It is common
ground that the provisions of the BeamtVG at issue do not entail discrimination
directly based on sex. It is therefore necessary to ascertain whether they can
amount to indirect discrimination...
To establish
whether there is indirect discrimination, it is necessary to ascertain whether
the provisions at issue have a more unfavourable impact on women than on men...
Therefore it
is necessary to determine whether the statistics available indicate that a
considerably higher percentage of women than men is affected by the provisions
of the BeamtVG entailing a reduction in the pensions of civil servants who have
worked part-time for at least a part of their career. Such a situation would be
evidence of apparent discrimination on grounds of sex unless the provisions at
issue were justified by objective factors unrelated to any discrimination based
on sex.”
90. In Debra Allonby v. Accrington & Rossendale College and Others,
Education Lecturing Services ... and Secretary of State for Education and
Employment (judgment of 13 January 2004, Case C-256/01), it stated (point 81):
“... it must
be held that a woman may rely on statistics to show that a clause in State
legislation is contrary to Article 141(1) EC because it discriminates against
female workers. ...”
91. Lastly, in Commission
of the European Communities v. Republic of Austria (judgment of 7 July 2005, Case C-147/03), the CJEC observed
(points 41 and 46-48):
“According to
settled case-law, the principle of equal treatment prohibits not only overt
discrimination based on nationality but also all covert forms of discrimination
which, by applying other distinguishing criteria, lead in fact to the same
result (see, in particular, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11;
Case C-65/03 Commission v Belgium , cited above, paragraph 28, and Case
C-209/03 Bidar [2005] ECR I-0000, paragraph 51).
...
... the
legislation in question places holders of secondary education diplomas awarded
in a
Thus, although
Paragraph ... applies without distinction to all students, it is liable to have
a greater effect on nationals of other Member States than on Austrian
nationals, and therefore the difference in treatment introduced by that
provision results in indirect discrimination.
Consequently,
the differential treatment in question could be justified only if it were based
on objective considerations independent of the nationality of the persons
concerned and were proportionate to the legitimate aim of the national
provisions (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraph 27, and
D'Hoop , cited above, paragraph 36).”
V. RELEVANT
UNITED NATIONS MATERIALS
A. International
Covenant on Civil and Political Rights
92. Article 26 of the
Covenant provides:
“All persons
are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.”
B. United
Nations Human Rights Committee
93. In points 7 and 12 of
its General Observations no. 18 of 10 November 1989 on Non-Discrimination,
the Committee expressed the following opinion:
“... the
Committee believes that the term 'discrimination' as used in the Covenant
should be understood to imply any distinction, exclusion, restriction or
preference which is based on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status, and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all persons, on an equal
footing, of all rights and freedoms.
...
when legislation is adopted by a State party, it must comply with the
requirement of article 26 that its content should not be discriminatory.”
94. In point 11.7 of its
Views dated 31 July 1995 on Communication no. 516/1992 concerning the
“The Committee
is of the view, however, that the intent of the legislature is not alone
dispositive in determining a breach of article 26 of the Covenant. A
politically motivated differentiation is unlikely to be compatible with article
26. But an act which is not politically motivated may still contravene article
26 if its effects are discriminatory.”
C. International
Convention on the Elimination of All Forms of Racial Discrimination
95. Article 1 of this
Convention provides:
“... the term 'racial
discrimination' shall mean any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin which
has the purpose or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing, of human rights and fundamental freedoms in
the political, economic, social, cultural or any other field of public life.
...”
D. Committee
on the Elimination of Racial Discrimination
96. In its General Recommendation
no. 14 of 22 March 1993 on the definition of discrimination, the Committee
noted, inter alia:
“A distinction
is contrary to the Convention if it has either the purpose or the effect of
impairing particular rights and freedoms. This is confirmed by the obligation
placed upon States parties by article 2, paragraph 1 (c), to nullify any law or
practice which has the effect of creating or perpetuating racial
discrimination. ...
In seeking to
determine whether an action has an effect contrary to the Convention, [the
Committee] will look to see whether that action has an unjustifiable disparate
impact upon a group distinguished by race, colour, descent, or national or
ethnic origin.”
97. In its General
Recommendation no. 19 of 18 August 1995 on racial segregation and apartheid,
the Committee observed:
“... while
conditions of complete or partial racial segregation may in some countries have
been created by governmental policies, a condition of partial segregation may
also arise as an unintended by-product of the actions of private persons. In
many cities residential patterns are influenced by group differences in income,
which are sometimes combined with differences of race, colour, descent and
national or ethnic origin, so that inhabitants can be stigmatized and
individuals suffer a form of discrimination in which racial grounds are mixed
with other grounds.
The Committee
therefore affirms that a condition of racial segregation can also arise without
any initiative or direct involvement by the public authorities. ...”
98. In its General
Recommendation no. 27 of 16 August 2000 on Discrimination against Roma, the
Committee made, inter alia, the
following recommendation in the education sphere:
“17. To support the inclusion in the school system of all
children of Roma origin and to act to reduce drop-out rates, in particular
among Roma girls, and, for these purposes, to cooperate actively with Roma
parents, associations and local communities.
18. To prevent and avoid as much as possible the segregation
of Roma students, while keeping open the possibility for bilingual or
mother-tongue tuition; to this end, to endeavour to raise the quality of
education in all schools and the level of achievement in schools by the
minority community, to recruit school personnel from among members of Roma
communities and to promote intercultural education.
19. To consider adopting measures in favour of Roma children,
in cooperation with their parents, in the field of education.”
99. In its concluding observations of 30 March 1998 following
its examination of the report submitted by the
“13. The
marginalization of the Roma community in the field of education is noted with
concern. Evidence that a disproportionately large number of Roma children are
placed in special schools, leading to de facto racial segregation, and that
they also have a considerably lower level of participation in secondary and
higher education, raises doubts about whether article 5 of the Convention is
being fully implemented.”
E. Convention
on the Rights of the Child
100. Articles 28 and 30 of
this Convention provide:
Article 28
“1. States
Parties recognize the right of the child to education, and with a view to
achieving this right progressively and on the basis of equal opportunity, they
shall, in particular:
(a) Make
primary education compulsory and available free to all;
(b) Encourage
the development of different forms of secondary education, including general
and vocational education, make them available and accessible to every child,
and take appropriate measures such as the introduction of free education and
offering financial assistance in case of need;
(c) Make
higher education accessible to all on the basis of capacity by every
appropriate means;
(d) Make
educational and vocational information and guidance available and accessible to
all children;
(e) Take
measures to encourage regular attendance at schools and the reduction of
drop-out rates.
2. States
Parties shall take all appropriate measures to ensure that school discipline is
administered in a manner consistent with the child's human dignity and in
conformity with the present Convention.
3. States
Parties shall promote and encourage international cooperation in matters
relating to education, in particular with a view to contributing to the
elimination of ignorance and illiteracy throughout the world and facilitating
access to scientific and technical knowledge and modern teaching methods. In
this regard, particular account shall be taken of the needs of developing
countries.”
Article 30
“In those
States in which ethnic, religious or linguistic minorities or persons of
indigenous origin exist, a child belonging to such a minority or who is
indigenous shall not be denied the right, in community with other members of
his or her group, to enjoy his or her own culture, to profess and practise his
or her own religion, or to use his or her own language.”
F. UNESCO
101. Articles 1 to 3 of the
Convention against Discrimination in Education of 14 December 1960 provide:
Article 1
“1. For the purposes of this
Convention, the term 'discrimination' includes any distinction, exclusion,
limitation or preference which, being based on race, colour, sex, language,
religion, political or other opinion, national or social origin, economic
condition or birth, has the purpose or effect of nullifying or impairing
equality of treatment in education and in particular:
(a) Of depriving any person or group
of persons of access to education of any type or at any level;
(b) Of limiting any person or group
of persons to education of an inferior standard;
(c) Subject to the provisions of
Article 2 of this Convention, of establishing or maintaining separate
educational systems or institutions for persons or groups of persons; or
(d) Of inflicting on any person or
group of persons conditions which are incompatible with the dignity of man.
...”
Article 2
“When
permitted in a State, the following situations shall not be deemed to
constitute discrimination, within the meaning of Article I of this Convention:
(a) The establishment or maintenance
of separate educational systems or institutions for pupils of the two sexes, if
these systems or institutions offer equivalent access to education, provide a
teaching staff with qualifications of the same standard as well as school
premises and equipment of the same quality, and afford the opportunity to take
the same or equivalent courses of study;
(b) The establishment or
maintenance, for religious or linguistic reasons, of separate educational
systems or institutions offering an education which is in keeping with the
wishes of the pupil's parents or legal guardians, if participation in such
systems or attendance at such institutions is optional and if the education
provided conforms to such standards as may be laid down or approved by the
competent authorities, in particular for education of the same level;
(c) The establishment or maintenance
of private educational institutions, if the object of the institutions is not
to secure the exclusion of any group but to provide educational facilities in
addition to those provided by the public authorities, if the institutions are
conducted in accordance with that object, and if the education provided
conforms with such standards as may be laid down or approved by the competent
authorities, in particular for education of the same level.”
Article 3
“In order to eliminate and prevent
discrimination within the meaning of this Convention, the States Parties
thereto undertake:
(a) To abrogate any statutory
provisions and any administrative instructions and to discontinue any
administrative practices which involve discrimination in education;
(b) To ensure, by legislation where
necessary, that there is no discrimination in the admission of pupils to
educational institutions;
...”
102. The
Declaration on Race and Racial Prejudice adopted by the UNESCO General
Conference on 27 November 1978 proclaims as follows:
Article 1
“1. All
human beings belong to a single species and are descended from a common stock.
They are born equal in dignity and rights and all form an integral part of
humanity.
2. All
individuals and groups have the right to be different, to consider themselves
as different and to be regarded as such. However, the diversity of life styles
and the right to be different may not, in any circumstances, serve as a pretext
for racial prejudice; they may not justify either in law or in fact any
discriminatory practice whatsoever, nor provide a ground for the policy of
apartheid, which is the extreme form of racism.
...”
Article 2
“...
2. Racism
includes racist ideologies, prejudiced attitudes, discriminatory behaviour,
structural arrangements and institutionalized practices resulting in racial
inequality as well as the fallacious notion that discriminatory relations
between groups are morally and scientifically justifiable; it is reflected in
discriminatory provisions in legislation or regulations and discriminatory
practices as well as in anti-social beliefs and acts; it hinders the
development of its victims, perverts those who practise it, divides nations
internally, impedes international cooperation and gives rise to political
tensions between peoples; it is contrary to the fundamental principles of
international law and, consequently, seriously disturbs international peace and
security.
3. Racial
prejudice, historically linked with inequalities in power, reinforced by
economic and social differences between individuals and groups, and still
seeking today to justify such inequalities, is totally without justification.”
Article 3
“Any
distinction, exclusion, restriction or preference based on race, colour, ethnic
or national origin or religious intolerance motivated by racist considerations,
which destroys or compromises the sovereign equality of States and the right of
peoples to self-determination, or which limits in an arbitrary or discriminatory
manner the right of every human being and group to full development is
incompatible with the requirements of an international order which is just and
guarantees respect for human rights; the right to full development implies
equal access to the means of personal and collective advancement and fulfilment
in a climate of respect for the values of civilizations and cultures, both
national and world-wide.”
Article 5
“1. Culture,
as a product of all human beings and a common heritage of mankind, and
education in its broadest sense, offer men and women increasingly effective
means of adaptation, enabling them not only to affirm that they are born equal
in dignity and rights, but also to recognize that they should respect the right
of all groups to their own cultural identity and the development of their
distinctive cultural life within the national and international contexts, it
being understood that it rests with each group to decide in complete freedom on
the maintenance, and, if appropriate, the adaptation or enrichment of the
values which it regards as essential to its identity.
2. States,
in accordance with their constitutional principles and procedures, as well as
all other competent authorities and the entire teaching profession, have a
responsibility to see that the educational resources of all countries are used
to combat racism, more especially by ensuring that curricula and textbooks
include scientific and ethical considerations concerning human unity and
diversity and that no invidious distinctions are made with regard to any
people; by training teachers to achieve these ends; by making the resources of
the educational system available to all groups of the population without racial
restriction or discrimination; and by taking appropriate steps to remedy the
handicaps from which certain racial or ethnic groups suffer with regard to
their level of education and standard of living and in particular to prevent
such handicaps from being passed on to children.
...”
Article 6
“1. The
State has prime responsibility for ensuring human rights and fundamental
freedoms on an entirely equal footing in dignity and rights for all individuals
and all groups.
2. So
far as its competence extends and in accordance with its constitutional
principles and procedures, the State should take all appropriate steps, inter
alia by legislation, particularly in the spheres of education, culture and
communication, to prevent, prohibit and eradicate racism racist propaganda,
racial segregation and apartheid and to encourage the dissemination of
knowledge and the findings of appropriate research in natural and social
sciences on the causes and prevention of racial prejudice and racist attitudes
with due regard to the principles embodied in the Universal Declaration of
Human Rights and in the International Covenant on Civil and Political Rights.
3. Since
laws proscribing racial discrimination are not in themselves sufficient, it is
also incumbent on States to supplement them by administrative machinery for the
systematic investigation of instances of racial discrimination, by a
comprehensive framework of legal remedies against acts of racial
discrimination, by broadly based education and research programmes designed to
combat racial prejudice and racial discrimination and by programmes of positive
political, social, educational and cultural measures calculated to promote
genuine mutual . respect among groups. Where circumstances warrant, special
programmes should be undertaken to promote the advancement of disadvantaged
groups and, in the case of nationals, to ensure their effective participation
in the decision-making processes of the community.”
Article 9
“1. The
principle of the equality in dignity and rights of all human beings and all
peoples, irrespective of race, colour and origin, is a generally accepted and
recognized principle of international law. Consequently any form of racial
discrimination practised by a State constitutes a violation of international
law giving rise to its international responsibility.
2. Special
measures must be taken to ensure equality in dignity and rights for individuals
and groups wherever necessary, while ensuring that they are not such as to
appear racially discriminatory. In this respect, particular attention should be
paid to racial or ethnic groups which are socially or economically
disadvantaged, so as to afford them, on a completely equal footing and without
discrimination or restriction, the protection of the laws and regulations and
the advantages of the social measures in force, in particular in regard to
housing, employment and health; to respect the authenticity of their culture
and values; and to facilitate their social and occupational advancement,
especially through education.
...”
VI. OTHER SOURCES
A. European Monitoring Centre on Racism and
Xenophobia (now the European Union Agency for Fundamental Rights)
103. The information on
education in the
“In the
The most serious problem of the Czech education system is still the
segregatory placement of children from socially disadvantaged background (very
often Roma) in special schools. More than half of Roma children study there.
Such tendencies of the Czech education system especially at elementary schools
were proved by extensive research carried out by the
104. The Monitoring Centre's
report entitled 'Roma and Travellers in Public Education', which was published
in May 2006 and concerned what at the time were 25 member States of the
European Union, noted inter alia that
although systematic segregation of Roma children no longer existed as
educational policy, segregation was practised by schools and educational
authorities in a number of different, mostly indirect, ways sometimes as the
unintended effect of policies and practices and sometimes as a result of
residential segregation. Schools and educational authorities may, for example,
segregate pupils on the basis of a perception of “their different needs” and/or
as a response to behavioural issues and learning difficulties. The latter could
also lead to the frequent placement of Roma pupils in special schools for
mentally handicapped children, which was still a worrying phenomenon in Member
States of the European Union like
B. The House of Lords
105. In its decision of 9 December 2004 in the case of Regina v. Immigration Officer at Prague
Airport and another, ex parte
European Roma Rights Centre and others, the House of Lords unanimously held
that British immigration officers working at Prague Airport had discriminated
against Roma wishing to travel from the airport to Great Britain as they had on
racial grounds treated them less favourably than other people travelling to the
same destination.
106. Baroness Hale of
“73. ... The underlying concept in both race and sex discrimination laws
is that individuals of each sex and all races are entitled to be treated
equally. Thus it is just as discriminatory to treat men less favourably than
women as it is to treat women less favourably than men; and it is just as
discriminatory to treat whites less favourably than blacks as it is to treat
blacks less favourably than whites. The ingredients of unlawful discrimination
are (i) a difference in treatment between one person and another person (real
or hypothetical) from a different sex or racial group; (ii) that the treatment
is less favourable to one; (iii) that their relevant circumstances are the same
or not materially different; and (iv) that the difference in treatment is on
sex or racial grounds. However, because people rarely advertise their
prejudices and may not even be aware of them, discrimination has normally to be
proved by inference rather than direct evidence. Once treatment less favourable
than that of a comparable person (ingredients (i), (ii) and (iii)) is shown,
the court will look to the alleged discriminator for an explanation. The
explanation must, of course, be unrelated to the race or sex of the complainant.
If there is no, or no satisfactory explanation, it is legitimate to infer that
the less favourable treatment was on racial grounds...
74. If direct discrimination of this sort is shown, that is
that. Save for some very limited exceptions, there is no defence of objective
justification. The whole point of the law is to require suppliers to treat each
person as an individual, not as a member of a group. The individual should not
be assumed to hold the characteristics which the supplier associates with the
group, whether or not most members of the group do indeed have such
characteristics, a process sometimes referred to as stereotyping. ...
75. The
complaint in this case is of direct discrimination against the Roma. Indirect
discrimination arises where an employer or supplier treats everyone in the same
way, but he applies to them all a requirement or condition which members of one
sex or racial group are much less likely to be able to meet than members of
another: for example, a test of heavy lifting which men would be much more
likely to pass than women. This is only unlawful if the requirement is one
which cannot be justified independently of the sex or race of those involved...
But it is the requirement or condition that may be justified, not the
discrimination. This sort of justification should not be confused with the
possibility that there may be an objective justification for discriminatory
treatment which would otherwise fall foul of article 14 of the European
Convention on Human Rights. ...
90. It
is worth remembering that good equal opportunities practice may not come
naturally. Many will think it contrary to common sense to approach all
applicants with an equally open mind, irrespective of the very good reasons
there may be to suspect some of them more than others. But that is what is
required by a law which tries to ensure that individuals are not disadvantaged
by the general characteristics of the group to which they belong. In 2001, when
the operation with which we are concerned began, the race relations legislation
had only just been extended to cover the activities of the immigration service.
It would scarcely be surprising if officers acting under considerable pressure
of time found it difficult to conform in all respects to procedures and
expectations which employers have been struggling to get right for more than
quarter of a century.
91. It is against this background
that such evidence as there is of what happened on the ground at
C. The
107. The
Supreme Court issued its decision in the case of Griggs v. Duke Power Co., 401 U.S. 424 (1971), in which it
established the disparate impact test, after black employees at an electricity
generating plant had brought proceedings on the grounds that their employers'
practice of requiring them to hold a high school diploma or to pass an aptitude
test, even for the least well-paid jobs, was discriminatory. Fewer blacks had
managed to obtain the diploma or pass the standardised tests. The Supreme Court
stated:
“The [Civil Rights] Act [of 1964] requires the elimination of
artificial, arbitrary, and unnecessary barriers to employment that operate
invidiously to discriminate on the basis of race, and, if, as here, an
employment practice that operates to exclude Negroes cannot be shown to be
related to job performance, it is prohibited, notwithstanding the employer's
lack of discriminatory intent.
The Act does not preclude the use of testing or measuring procedures,
but it does proscribe giving them controlling force unless they are
demonstrably a reasonable measure of job performance...
The Act proscribes not only overt discrimination but also practices that
are fair in form, but discriminatory in operation. The touchstone is business
necessity. If an employment practice which operates to exclude Negroes cannot
be shown to be related to job performance, the practice is prohibited. ...
... Congress has placed on the employer the burden of showing that any
given requirement must have a manifest relationship to the employment in
question.”
THE LAW
I. SCOPE
OF THE GRAND CHAMBER'S JURISDICTION
108. In their final
observations, which were lodged with the Grand Chamber on 26 September 2006,
the applicants repeated their contention that there had been a violation of
their rights under Article 3 and Article 6 § 1 of the Convention.
109. Under the Court's
case-law, the “case” referred to the Grand Chamber is the application as it has
been declared admissible (see, among other authorities, Leyla Şahin v. Turkey [GC],
no. 44774/98, § 128, ECHR 2005-XI; and Üner v. the Netherlands [GC], no. 46410/99, § 41, ECHR 2006‑...). The Grand Chamber notes that in
its partial decision of 1 March 2005 the Chamber declared inadmissible all the
applicants' complaints that did not relate to Article 14 of the Convention read
in conjunction with Article 2 of Protocol No 1, including those under Articles
3 and 6 § 1 of the Convention. Accordingly, the latter complaints – assuming
the applicants still wish to rely on them – are not within the scope of the
case before the Grand Chamber.
II. THE
GOVERNMENT'S PRELIMINARY OBJECTION
110. The Court notes that in
its decision on the admissibility of the application the preliminary objection made
by the Government in their observations of 15 March 2004 of a failure to
exhaust domestic remedies was joined to the merits of the complaint under
Article 14 of the Convention read in conjunction with Article 2 of Protocol No.
1. In its judgment of 7 February 2005 (§ 31), the Chamber
found that the parties' submissions on the issue of the exhaustion of domestic
remedies raised questions that were closely linked to the merits of the case.
It agreed with the
111. It will be recalled
that where a case is referred to it, the Grand Chamber may also examine issues
relating to the admissibility of the application, for example where they have
been joined to the merits or are otherwise relevant at the merits stage (K. and T. v. Finland [GC],
no. 25702/94, § 141, ECHR 2001-VII).
112. In
these circumstances, the Grand Chamber considers it necessary to determine
whether the applicants have in the instant case satisfied the exhaustion of
domestic remedies requirement.
113. The Government argued that the
applicants had not used all available means to remedy their position. None of
them had exercised their right to appeal against the decisions to place them in
special schools. Six had failed to lodge a constitutional appeal. Further, of
those applicants who had appealed to the
114. The applicants
submitted, firstly, that there were no remedies available in the
Further, even
supposing that an effective remedy existed, the applicants submitted that it
did not have to be exercised in cases in which an administrative practice, such
as the system of special schools in the Czech Republic, made racism possible or
encouraged it. They also drew the Court's attention to the racial hatred and
numerous acts of violence directed at Roma in the
115. The Court reiterates
that the rule of exhaustion of domestic remedies referred to in Article 35 § 1
of the Convention is based on the assumption that the domestic system provides
an effective remedy in respect of the alleged breach. It is for the Government
claiming non-exhaustion to satisfy the Court that an effective remedy was
available in theory and in practice at the relevant time; that is to say, that
the remedy was accessible, capable of providing redress in respect of the
applicant's complaints and offered reasonable prospects of success (V. v. the United Kingdom [GC], no. 24888/94,
§ 57, ECHR 1999-IX).
116. The application of the
rule of exhaustion of domestic remedies must make due allowance for the fact
that it is being applied in the context of machinery for the protection of
human rights that the Contracting States have agreed to set up. The Court has
accordingly recognised that Article 35 § 1 must be applied with some degree of
flexibility and without excessive formalism. It has further recognised that the
rule of exhaustion is neither absolute nor capable of being applied
automatically; for the purposes of reviewing whether it has been observed, it
is essential to have regard to the circumstances of the individual case. This
means, in particular, that the Court must take realistic account not only of
the existence of formal remedies in the legal system of the Contracting State
concerned but also of the general context in which they operate, as well as the
personal circumstances of the applicant. It must then examine whether, in all
the circumstances of the case, the applicant did everything that could
reasonably be expected of him or her to exhaust domestic remedies (İlhan v.
117. In the
present case, the Government complained, firstly, that none of the applicants
had sought to appeal against the decision ordering their placement in a special
school or brought an action to protect their personality rights.
118. In this connection, the
Court, like the applicants, notes that the
119. Secondly,
the Government stated that of the twelve applicants who had lodged a
constitutional appeal, only five had actually contested the decisions to place
them in special schools, so enabling the
120. The Court notes that by
virtue of the fact that the five applicants concerned had brought a
constitutional appeal in due form, the
121. Further, it can be seen
from its decision of 20 October 1999 that the Constitutional Court confined
itself to verifying the competent authorities' interpretation and application
of the relevant statutory provisions without considering their impact, which
the applicants argued was discriminatory. As regards the complaint of racial
discrimination, it also stated that it was not its role to assess the overall
social context.
122. In these circumstances,
there is nothing to suggest that the Constitutional Court's decision would have
been different had it been called upon to decide the cases of the thirteen
applicants who did not lodge a constitutional appeal or challenge the decision
of the head teacher of the special school. In the light of these
considerations, the Court is not satisfied that, in the special circumstances
of the present case, this remedy was apt to afford the applicants redress for
their complaints or offered reasonable prospects of success.
123. Consequently, the
Government's preliminary objection in this case must be rejected.
III. ALLEGED
VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 2 OF
PROTOCOL NO. 1
124. The applicants
maintained that they had been discriminated against in that because of their
race or ethnic origin they had been treated less favourably than other children
in a comparable situation without any objective and reasonable justification.
They relied in that connection on Article 14 of the Convention, read in
conjunction with Article 2 of Protocol No. 1, which provisions provide as
follows:
Article 14
of the Convention
“The enjoyment
of the rights and freedoms set forth in [the] Convention shall be secured
without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.”
Article 2
of Protocol No. 1
“No person
shall be denied the right to education. In the exercise of any functions which
it assumes in relation to education and to teaching, the State shall respect
the right of parents to ensure such education and teaching in conformity with
their own religious and philosophical convictions.”
A. The
Chamber judgment
125. The Chamber held that
there had been no violation of Article 14 of the Convention, read in
conjunction with Article 2 of Protocol No 1. In its view, the Government had
succeeded in establishing that the system of special schools in the
126. The Chamber noted in
particular that the applicants had not succeeded in refuting the experts'
findings that their learning difficulties were such as to prevent them from
following the ordinary primary school curriculum. It was further noted that the
applicants' parents had failed to take any action or had themselves requested
their children's placement or continued placement in a special school.
127. The Chamber accepted in
its judgment that it was not easy to choose an education system that reconciled
the various competing interests and that there did not appear to be an ideal
solution. However, while acknowledging that the statistical evidence disclosed
worrying figures and that the general situation in the Czech Republic
concerning the education of Roma children was by no means perfect, it
considered that the concrete evidence before it did not enable it to conclude
that the applicants' placement or, in some instances, continued placement, in
special schools was the result of racial prejudice.
B. The
parties' submissions to the Grand Chamber
1. The
applicants
128. The applicants
submitted that the restrictive interpretation the Chamber had given to the
notion of discrimination was incompatible not only with the aim of the
Convention but also with the case-law of the Court and of other jurisdictions
in
129. They firstly asked the
Grand Chamber to correct the obscure and contradictory test the Chamber had
used for deciding whether there had been discrimination. They noted that,
while reaffirming the established principle that if a policy or general measure
had disproportionately prejudicial effects on a group of people, the
possibility of its being considered discriminatory could not be ruled out even
if it was not specifically aimed or directed at that group, the Chamber had
nevertheless departed from the Court's previous case-law (Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Hoogendijk v. the Netherlands (dec.),
no. 58461/00, 6 January 2005; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005-...) by
erroneously requiring the applicants to prove discriminatory intent on the part
of the Czech authorities. In the applicants' submission, such a requirement was
unrealistic and illogical as the question whether or not special schools were
designed to segregate along ethnic lines was irrelevant since that was
indisputably the effect they had in practice. The reality was that
well-intentioned actors often engaged in discriminatory practices through
ignorance, neglect or inertia.
130. The
applicants observed in particular that in explaining why it had refused to
shift the burden of proof in its Nachova and Others v. Bulgaria judgment ([GC], cited above, § 157) the Court had been careful to
distinguish between racially-motivated violent crime and non-violent acts of
racial discrimination in, for example, employment or the provision of services.
In their submission, racial discrimination in access to education fell
precisely in the latter category of discriminatory acts which could be proved
in the absence of intent. More recently, the Court had ruled in the Zarb Adami v. Malta case (no. 17209/02,
§§ 75 and 76, ECHR 2006-...) that a difference in treatment did not need to be
set forth in legislative text in order to breach Article 14 and that a
“well-established practice” or “de facto
situation” could also give rise to discrimination. As, in the instant case, the
applicants considered that they had indisputably succeeded in establishing the
existence of a disproportionate impact, the burden of proof had to shift to the
Government to prove that the applicants' ethnic origin had had no bearing on
the impugned decisions and that sufficient safeguards against discrimination
were in place.
131. In that connection, the applicants noted that in its
General Policy Recommendation No. 7, ECRI had invited the States to prohibit both
direct discrimination and indirect discrimination, with neither concept
requiring proof of discriminatory intent. A clear majority of the member States
of the Council of Europe had already expressly prohibited discrimination in
sections of their national legislation without requiring proof of such intent
and this was reflected in the judicial practice of those States. The applicants
referred in this context to, inter alia,
the decision of the House of Lords in the case of Regina v. Immigration
Officer at Prague Airport and another, ex parte
European Roma Rights Centre and others (see paragraph 105 above) and to the jurisprudence of
the Court of Justice of the European Communities (CJEC). Lastly, they
noted that indirect discrimination was also prohibited under international law,
including the International Covenant on Civil and Political Rights and the
Convention on the Elimination of Racial Discrimination.
132. Accordingly,
in view of the vital importance of Article 14 protection and the need to make
it effective, the applicants considered that it would be helpful for the Court to
clarify the rules it applied in such situations to ensure, inter alia, that the principle of non-discrimination was
interpreted and applied consistently by the two European courts. For this
reason, the applicants asked the Grand Chamber to give a clear ruling that
intent was not necessary to prove discrimination under Article 14, except in
cases – such as, for example, of racially motivated violence – where it was
already an element of the underlying offence.
133. In the instant case, the
applicants did not claim that the competent authorities had at the relevant
time harboured invidiously racist attitudes towards Roma, or that they had
intended to discriminate against Roma, or even that they had failed to take
positive measures. All the applicants needed to prove – and, in their
submission, had proved – was that the authorities had subjected the applicants
to differential adverse treatment in comparison with similarly situated
non-Roma, without objective and reasonable justification. The question of a
common European standard that had been raised by the Government was, in the
applicants' view, more of a political issue and the existence or otherwise of
such a standard was of no relevance as the principle of equality of treatment
was a binding rule of international law.
134. Similarly,
the applicants asked the Grand Chamber to provide guidance concerning the kinds
of proof, including but not limited to statistical evidence, which might be
relevant to a claim of a violation of Article 14. They noted that the Chamber
had discounted the overwhelming statistical evidence they had adduced, without
checking whether or not it was accurate, despite the fact that it had been
corroborated by independent specialised intergovernmental bodies (ECRI, the
Committee on the Elimination of Racial Discrimination, and the Advisory Committee on the Framework
Convention for the Protection of National Minorities) and by the
Government's own admission (see paragraphs 41 and 66 above). According to this
data, although Roma represented only 5% of all primary school pupils at the
time the application was lodged, they made up more than 50% of the population
of special schools. Whereas fewer than 2% of non-Roma pupils in
135. In the
applicants' view, these figures strongly suggested that, whether through
conscious design or reprehensible neglect, race or ethnicity had infected the
process of school assignment to a substantial – perhaps determining – extent.
The presumption that they, like other Roma children in the city of
136. In this
context, they argued that both in
137. With
respect to the Convention institutions, the applicants noted that, in finding
racial discrimination in the case of East
African Asians v. the United Kingdom (nos. 4403/70-4530/70, Commission report of
14 December 1973, Decisions and Reports 78-B, p. 5), the
Commission took into account the surrounding circumstances including
statistical data on the disproportionate effect the legislation had on British
citizens of Asian origin. Recently, the Court had indicated in its decision in
the case of Hoogendijk v. the
138. The applicants added
that it would be helpful for the Grand Chamber to clarify the Court's case-law by
determining whether there was an objective and reasonable justification for the
purposes of Article 14 for the difference in treatment in the present case and
specifying the conclusions that should be drawn in the absence of a
satisfactory explanation. Referring to, inter
alia, the judgments in the cases of Timishev v. Russia (nos. 55762/00 and 55974/00, § 56, ECHR
2005‑...) and Moldovan v.
139. In view
of the importance of the fight against racial and ethnic discrimination that
had constantly been reaffirmed by the Strasbourg institutions, the applicants
considered that the Grand Chamber should state in clear terms that the States'
“margin of appreciation” could not serve to justify segregation in education.
The approach adopted by the Chamber, which left an unlimited margin of
appreciation to the
140. The applicants further argued that the Chamber had
misinterpreted crucial evidence and drawn inappropriate conclusions on two
decisive issues, namely parental consent and the reliability of the
psychological tests.
141. There were no uniform rules at the material time governing
the manner in which the tests used by the educational psychology centres were
administered and the results interpreted, so that much had been left to the
discretion of the psychologists and there had been considerable scope for
racial prejudice and cultural insensitivity. Further, the tests which they and
other Roma children had been forced to sit were scientifically flawed and
educationally unsound. The documentary evidence showed that a number of the
applicants had been placed in special schools for reasons other than
intellectual deficiencies (such as absenteeism, bad behaviour, and even
misconduct on the part of the parents). The Czech Government had themselves acknowledged
the discriminatory effect of the tests (see paragraph 66 above). They had also
admitted in their observations on the present case that one of the applicants
had been placed in a special school despite possessing good verbal-expression
skills.
142. Nor, in
the applicants' submission, could the discriminatory treatment to which they
had been subjected be justified by their parents' consent to their placement in
the special schools. Governments were legally bound to protect the higher
interest of the child and in particular the equal right of all children to
education. Neither parental conduct nor parental choice could deprive them of
that right.
The credibility of the “consent” allegedly
given by the parents of several of the applicants had been called into question
by inconsistencies in the school records that raised doubts as to whether they
had indeed agreed. In any event, even supposing that consent had been given by
all the parents, it had no legal value as the parents concerned had never been
properly informed of their right to withhold their consent, of alternatives to
placement in a special school or of the risks and consequences of such a
placement. The procedure was largely formal: the parents were given a
pre-completed form and the results of the psychological tests, results they
believed they had no right to contest. As to the alleged right subsequently to
request a transfer to an ordinary school, the applicants pointed out that from
their very first year at school they had received a substantially inferior
education that made it impossible for them subsequently to meet the
requirements of the ordinary schools.
Moreover, it was unrealistic to consider the
issue of consent without taking into account the history of Roma segregation in
education and the absence of adequate information on the choices available to
Roma parents. Referring to the view that had been expressed by the Court (in Hĺkansson and Sturesson v. Sweden,
judgment of 21 February 1990, Series A no. 171-A, § 66) that a waiver may be lawful for certain rights but not for others and
that it must not run counter to any important public interest, the applicants
submitted that there could be no waiver of the child's right not to be racially
discriminated against in education.
143. The
instant case raised “a serious issue of general importance”, namely whether
European governments were capable of coping with increasing racial and ethnic
diversity and of protecting vulnerable minorities. In that connection, the most
important issue was that of equality of opportunity in education as
discrimination against Roma in that sphere persisted in all the member States
of the Council of Europe. Putting an end to discrimination at school would
enable Roma to enjoy equality of treatment generally.
144. The racial segregation
of Roma children in Czech schools had not materially changed since the date the
application was filed. The applicants' own futures and lack of prospects
revealed the harm that their discriminatory placement in special schools had caused.
Thus, in May 2006 eight of the applicants were continuing their education in a
special school while a further six who had completed special school found
themselves unemployed. Of the four applicants who had been allowed to attend
ordinary primary school after passing the aptitude tests, two were still at
school, one was unemployed and the fourth was enrolled in a vocational secondary
school. The applicants considered that it was already clear that none of them
would receive a general secondary school education, still less a university
education.
145. Finally, the applicants
pointed out that a new Schools Act had been passed in late 2004, which had purported
to end the special school system. The new legislation thus acknowledged that
the very existence of schools deemed “special” imposed a badge of inferiority
on those assigned there. In reality, however, the new law had not brought about
changes in practice as it had merely altered the criteria on which educational
programmes were based. Extensive research carried out by the European Roma
Rights Centre in 2005 and 2006 showed that in many cases special schools had
simply been renamed “remedial schools” or “practical schools” without any
substantial change in the composition of their teaching staff or the content of
their curriculum.
2. The
Government
146. The Government stated
that the case raised complex issues concerning the social problem of the
position of Roma in contemporary society. Although the Roma ostensibly enjoyed
the same rights as other citizens, in reality their prospects were limited by
both objective and subjective factors. There could be no improvement in their
situation without the involvement and commitment of all members of the Roma
community. When they attempted to eliminate these inequalities, member States
were confronted with numerous political, social, economic and technical
problems which could not be confined to the question of respect for fundamental
rights. It was for this reason that the courts, including the European Court of
Human Rights, had to exercise a degree of restraint when examining measures
adopted in this field and confine themselves to deciding whether or not the
competent authorities had overstepped their margin of appreciation.
147. Referring to their
previous written and oral observations, the Government reiterated that race,
colour or association with a national minority had not played a determining
role in the applicants' education. There was no specific evidence of any
difference in treatment of the applicants on the basis of those grounds. The
applicants' school files showed beyond doubt that their placement in special
schools was not based on their ethnic origin, but on the results of
psychological tests carried out at the educational psychology centres. Since
the applicants had been placed in special schools on account of their specific
educational needs resulting essentially from their intellectual capacity and,
since the criteria, the process by which the criteria were applied and the
system of special schools were all racially neutral, as the Chamber had
confirmed in its judgment, it was not possible to speak of overt or direct
discrimination in the instant case.
148. The Government next
turned to the applicants' argument that the instant case was one of indirect
discrimination which, in some instances, could only be established with the aid
of statistics. They contended that the case of Zarb Adami v. Malta (cited above), in which the Court had relied
extensively on statistical evidence submitted by the parties, was not
comparable to the instant case. Firstly, Zarb
Adami was far less complex. Secondly, the statistical disparities found in
that case between the number of men and women called to perform jury service were
the result of a decision by the State, whereas the statistics relied on by the
applicants in the instant case reflected first and foremost the parents' wishes
for their children to attend special school, not any act or omission on the
part of the State. Had the parents not expressed such a wish (by giving their
consent) the children would not have been placed in a special school.
Further, the
statistical information that had been submitted in the instant case by the
applicants was not sufficiently conclusive as the data had been furnished by
the head teachers of the schools and therefore only reflected their subjective
opinions. There was no official information on the ethnic origin of the pupils.
The Government further considered that the statistics had no informative value
without an evaluation of the socio-cultural background of the Roma, their
family situation and their attitude towards education. They pointed out in that
connection that the
As to the
comparative studies on countries from central and eastern Europe and beyond
cited in the observations of the third-party interveners, the Government did
not consider that there was any relevant link between those statistics and the
substantive issues in the case to hand. In their submission, those studies
tended to confirm that creating an education system optimised for Roma children
was an extremely complex task.
149. Nevertheless, even
assuming that the data submitted by the applicants was reliable and that the
State could be considered responsible for the situation, that did not, in the
Government's submission, amount to indirect discrimination that was
incompatible with the Convention. The impugned measure was consistent with the
principle of non-discrimination as it pursued a legitimate aim, namely the
adaptation of the education process to the capacity of children with specific
educational needs. It was also objectively and reasonably justified.
150. On this latter point,
the Government contested the applicants' claim that the Government had not
submitted any satisfactory explanation regarding the large number of Roma in
special schools. While admitting that the situation of the Roma with regard to
education was not ideal, the Government considered that they had demonstrated
that the special schools had not been established for the Roma community and
that ethnic origin had not been a criterion for deciding on placements in
special schools. They reiterated that special-school placements were only
possible after prior individualised pedagogical and psychological testing. The
testing process was a technical tool that was the subject of continuing
scientific research and for that reason could only be carried out by qualified
personnel. The courts did not possess the necessary qualifications and therefore
had to exercise a degree of restraint in this field. As regards the
professional standards referred to in the observations of the International Step
by Step Association and others, the Government emphasised that these were not
legal norms possessing force of law but, at most, non-binding recommendations
or indications by specialists and that the failure to apply them could not, by
definition, entail international legal responsibility.
151. The files of each of
the applicants contained full details of the methods that had been used and the
results of the testing. These had not been challenged at the time by any of the
applicants. The applicants' allegations that the psychologists had followed a
subjective approach appeared to be biased and not based on any evidence.
152. The Government again
conceded that there might have been rare situations where the reason for the
placement in a special school was on the borderline between learning difficulties
and a socio-culturally disadvantaged environment. Among the eighteen cases,
this had apparently happened in one case only, that of the ninth applicant.
Otherwise, the pedagogical-psychological diagnostics and the testing at the
educational psychology centres had proved learning difficulties in the case of
all the applicants.
153. The educational
psychology centres that had administered the tests had only made
recommendations concerning the type of school in which the child should be
placed. The essential, decisive factor was the wishes of the parents. In the
instant case, the parents had been informed that their children's placement in
a special school depended on their consent and the consequences of such a
decision had been explained to them. If the effect of their consent was not
entirely clear, they could have appealed against the decision regarding
placement and could at any time have required their child's transfer to a
different type of school. If, as they now alleged, their consent was not
informed, they should have sought information from the competent authorities.
The Government noted in this respect that Article 2 of Protocol No. 1 to the
Convention emphasised the primary role and responsibility of parents in the
education of their children. The State could not intervene if there was nothing
in the parents' conduct to indicate that they were unable or unwilling to
decide on the most appropriate form of education for their children.
Interference of that sort would contravene the principle that the State had to
respect parents' wishes regarding education and teaching.
In the instant
case, the Government noted that apart from appealing to the
154. The Government rejected
the applicants' argument that their placement in special schools had prevented
them from pursuing a secondary or higher education. Whether the applicants had
finished their compulsory education before or after the entry into force of the
new Schools Act (Law no. 561/2004), it had been open to them to pursue their
secondary education, to take additional lessons to bring them up to the
appropriate level or to seek career advice. However, none of the applicants had
established that they had attempted to do so (albeit unsuccessfully) or that
their (alleged) difficulties were due to a more limited education as a result
of their earlier placement in a special school. On the contrary, several of the
applicants had decided not to pursue their studies or had abandoned them. The
Government were firmly convinced that the applicants had deprived themselves of
the possibility of continuing their studies through a lack of interest. Their
situation, which in many cases was unfavourable, had stemmed mainly from their own
lack of interest, and was not something for which the State could be held
responsible.
155. The Government conceded
that the national authorities had to take all reasonable steps to ensure that
measures did not produce disproportionate effects or, if that was not feasible,
to mitigate and compensate for such effects. However, neither the Convention
nor any other international instrument contained a general definition of the
State's positive obligations concerning the education of Roma pupils or, more
generally, of children from national or ethnic minorities. The Government noted
in this connection that when determining the State's positive obligations, the
Court sometimes referred to developments in the legislation of the Contracting
Parties. However, they said that no European standard or consensus currently
existed regarding the criteria to be used to determine whether children should
be placed in special schools or how children with special learning needs should
be educated and the special school was one of the possible and acceptable solutions
to the problem.
156. Moreover, the positive
obligations under Article 14 of the Convention could not be construed as an
obligation to take affirmative action. That had to remain an option. It was not
possible to infer from Article 14 a general obligation on the part of the
State actively to compensate for all the disabilities which different sections of
the population suffered from.
157. In any event, since
special schools had to be regarded as an alternative, but not inferior, form of
education, the Government submitted that they had in the instant case adopted
reasonable measures to compensate for the disabilities of the applicants, who
required a special education as a result of their individual situation, and
that they had not overstepped the margin of appreciation which the Convention
afforded the States in the education sphere. They observed that the State had
allocated twice the level of resources to special schools as to ordinary
schools and that the domestic authorities had made considerable efforts to deal
with the complex issue of the education of Roma children.
158. The Government went on
to provide information on the applicants' current situation obtained from the
files of both the school and the Ostrava Job Centre (where those applicants who
were unemployed had signed on). As a preliminary, they noted that the
In concrete
terms, two applicants were currently in their final year at primary school.
Seven had begun vocational training in a secondary school in September 2006.
Four had started but later abandoned their secondary-school studies, the
majority through a lack of interest, and had instead signed on at the job
centre. Lastly, five of the applicants had not sought to pursue their studies
at secondary-school level but had registered at the job centre. Those
applicants who had registered at a job centre had not co-operated with it or
shown any interest in the offers of training or employment that had been made,
with the result that some of them had already been struck off the job-applicants
register (in some instances repeatedly).
159. Lastly, the Government
rejected the applicants' claim that nothing had been changed by the
introduction of the Schools Act (Law no. 561/2004). The Act unified the
previously existing types of primary school and standardised the educational
programmes. It did not provide for a separate, independent system of
specialised schools, with the exception of schools for pupils with serious
mental disorders, autism or combined mental and physical defects. Pupils with
disabilities were individually integrated, wherever possible and desirable,
into conventional schools. However, schools were authorised to set up separate
classes with educational techniques and methods adjusted to their needs. The
former “special schools” could continue to function as separate institutions,
but were now “primary schools” providing education under a modified educational
programme for primary education. Schools at which socially disadvantaged pupils
were educated often made use of their right to establish assistant teacher's
posts and preparatory classes designed to improve the children's communication
skills and command of the Czech language. Teacher's assistants from the Roma
community often served as a link between the school, family, and, in some
instances, other experts and helped to integrate pupils into the education
system. The region where the applicants lived favoured integrating Roma pupils
in classes drawn from the majority population.
160. In their concluding
submissions, the Government asked the Court carefully to examine the issue of
the applicants' access to education in each individual case, though without
losing sight of the overall context, and to hold that there had been no
violation of the Convention.
3. The
interveners
(a) Interights
and Human Rights Watch
161. Interights and Human
Rights Watch stated that it was essential that Article 14 of the Convention
should afford effective protection against indirect discrimination, a concept
which the Court had not yet had many occasions to consider. They submitted that
aspects of the Chamber's reasoning were out of step with recent developments in
cases such as Timishev v. Russia (judgment
cited above), Zarb Adami v. Malta (judgment
cited above) and Hoogendijk v. the
Netherlands (decision cited above). The Grand Chamber needed to consolidate
a purposive interpretation of Article 14 and to bring the Court's
jurisprudence on indirect discrimination in line with existing international
standards.
162. Interights and Human
Rights Watch noted that the Court itself had confirmed in Zarb Adami that discrimination was not always direct or explicit
and that a policy or general measure could result in indirect discrimination.
It had also accepted that intent was not required in cases of indirect
discrimination (Hugh Jordan v. the
United Kingdom, no. 24746/94, 4 May 2001, § 154). In their
submission, it was sufficient in the case of indirect discrimination that the
practice or policy resulted in a disproportionate adverse effect on a
particular group.
163. As to
proof of indirect discrimination, it was widely accepted in
164. It was
therefore critical for the Court to engage with the type of evidence that might
be produced in order to shift the burden of proof. Interights and Human Rights
Watch submitted on this point that the Court's position with regard to
statistical evidence, as set out in the Hugh
Jordan judgment (cited above, § 154), was at variance with international
and comparative practice. In European Communities Directives and international
instruments, statistics were the key method of proving indirect discrimination.
Where measures were neutral on their face, statistics sometimes proved the only
effective means of identifying their varying impact on different segments of
society. Obviously, courts had to assess the credibility, strength and
relevance of the statistics to the case at hand, requiring that they be tied to
the applicant's allegations in concrete ways.
If, however, the Court were to maintain the position that statistics
alone were not sufficient to disclose a discriminatory practice, Interights and
Human Rights Watch submitted that the general social context should be taken
into account, as it provided valuable insight into the extent to which the
effects of the measure on the applicants were disproportionate.
(b) Minority
Rights Group International, the European Network against Racism and the
European Roma Information Office
165. The Minority Rights
Group International, the European Network against Racism and the European Roma Information
Office submitted that the wrongful assignment of Roma children to special
schools for the mentally disabled was the most obvious and odious form of
discrimination against the Roma. Children in such special schools followed a
simplified curriculum considered appropriate for their lower level of
intellectual development. Thus, for example, in the
166. This practice had
received considerable attention, both at the European level and within the
human-rights bodies of the United Nations, which had expressed their concern in
various reports as to the over-representation of Roma children in special
schools, the adequacy of the tests employed and the quality of the alleged
parental consent. All these bodies had found that no objective and reasonable
justification could legitimise the disadvantage faced by Roma children in the
field of education. The degree of consistency among the institutions and
quasi-judicial bodies was persuasive in confirming the existence of widespread
discrimination against Roma children.
167. The interveners added
that whatever the merits of separate education for children with genuine mental
disabilities, the decision to place Roma children in special schools was in the
majority of cases not based on any actual mental disability but rather on
language and cultural differences which were not taken into account in the
testing process. In order to fulfil their obligation to secure equal treatment
for Roma in the exercise of their right to education, the first requirement of
States was to amend the testing process so that it was not racially prejudiced
against Roma and to take positive measures in the area of language training and
social-skills training.
(c) International Step by Step Association, the Roma
Education Fund and the European Early Childhood Education Research
Association
168. The International Step by Step
Association, the Roma Education Fund and the European Early Childhood Education
Research Association sought to demonstrate that the assessment used to place
Roma children in special schools in the
169. Referring
to various studies that had been carried out (see paragraph 44 above), the
interveners noted that minority children and those from vulnerable families
were over-represented in special education in central and eastern Europe. This
resulted from an array of factors, including unconscious racial bias on the
part of school authorities, large resource inequalities, unjustifiable reliance
on IQ and other evaluation tools, educators' inappropriate responses to the
pressures of “high-stakes” testing and power differentials between minority
parents and school officials. School placement through psychological testing
often reflected racial biases in the society concerned.
170. The
171. Further, the practice of
referring children labelled as being of low ability to special schools at an
early age (educational tracking) frequently led, whether or not intentionally, to
racial segregation and had particularly negative effects on the level of
education of disadvantaged children. This had long-term detrimental
consequences for both them and society, including premature exclusion from the
education system with the resulting loss of job opportunities for those
concerned.
(d) Fédération internationale des ligues des
droits de l'Homme (International Federation for Human Rights – FIDH)
172. The FIDH considered that the Chamber had
unjustifiably placed significant weight in its judgment on the consent which
the applicants' parents had allegedly given to the situation forming the
subject of their complaint to the Court. It noted that under the Court's
case-law there were situations in which the waiver of a right was not
considered capable of exempting the State from its obligation to guarantee to
every person within its jurisdiction the rights and freedoms laid down in the
Convention. That applied, in particular, where the waiver conflicted with an
important public interest, or was not explicit or unequivocal. Furthermore, in
order to be capable of justifying a restriction of the right or freedom of the
individual, the waiver of that guarantee by the person concerned had to take
place in circumstances from which it could be concluded that he was fully aware
of the consequences, in particular the legal consequences, of his choice. In
the case of R. v. Borden ([1994] 3
RCS 145, p. 162) the Supreme Court of Canada had developed the following
principle on that precise point: “[i]n order for a waiver of the right ... to
be effective, the person purporting to consent must be possessed of the
requisite informational foundation for a true relinquishment of the right. A
right to choose requires not only the volition to prefer one option over
another, but also sufficient available information to make the preference
meaningful”.
173. The
question therefore arose as to whether, in the light of the nature of the
principle of equality of treatment, and of the link between the prohibition of
racial discrimination and the wider concept of human dignity, waiver of the
right to protection against discrimination ought not to be precluded
altogether. In the instant case, the consent obtained from the applicants'
parents was binding not solely on the applicants but on all the children of the
Roma community. It was perfectly possible – indeed, in the FIDH's submission, probable – that all parents of Roma children
would prefer an integrated education for their children, but that, being
uncertain as regards the choice that would be made by other parents in that
situation, they preferred the “security” offered by special education, which
was followed by the vast majority of Roma children. In a context characterised
by a history of discrimination against the Roma, the choice available to the
parents of Roma children was between (a) placing their children in schools
where the authorities were reluctant to admit them and where they feared being
the subject of various forms of harassment and of manifestations of hostility
on the part of their fellow pupils and of teachers, or (b) placing them in
special schools where Roma children were in a large majority and where,
consequently, they would not have to fear the manifestation of such prejudices.
In reality, the applicants' parents had chosen what they saw as being the
lesser of two evils, in the absence of any real possibility of receiving an
integrated education which would unreservedly welcome Roma. The disproportion
between the two alternatives was such that the applicants' parents had been
obliged to make the choice for which the Government now sought to hold them
responsible
174. For the
reasons set out above, the FIDH
considered that in the circumstances of the instant case, the alleged waiver by
the applicants' parents of the right for their children to receive an education
in normal schools could not justify exempting the Czech Republic from its obligations
under the Convention.
C. The
Court's assessment
1. Recapitulation
of the main principles
175. The Court has
established in its case-law that discrimination means treating differently,
without an objective and reasonable justification, persons in relevantly
similar situations (Willis v.
the United Kingdom, no. 36042/97, § 48, ECHR 2002‑IV; and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). However, Article 14 does not prohibit a
member State from treating groups differently in order to correct “factual
inequalities” between them; indeed in certain circumstances a failure to
attempt to correct inequality through different treatment may in itself give
rise to a breach of the Article (“Case
relating to certain aspects of the laws on the use of languages in education in
Belgium” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, §
10; Thlimmenos v. Greece [GC],
no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006‑...). The Court has also accepted that
a general policy or measure that has disproportionately prejudicial effects on
a particular group may be considered discriminatory notwithstanding that it is
not specifically aimed at that group (Hugh Jordan
v. the United Kingdom, no. 24746/94, § 154, 4 May
2001; and Hoogendijk v. the Netherlands (dec.),
no. 58461/00, 6 January 2005), and that discrimination potentially contrary to
the Convention may result from a de facto
situation (Zarb Adami v. Malta, no. 17209/02,
§ 76, ECHR 2006‑...).
176. Discrimination on
account of, inter alia, a person's
ethnic origin is a form of racial discrimination. Racial discrimination is a
particularly invidious kind of discrimination and, in view of its perilous
consequences, requires from the authorities special vigilance and a vigorous
reaction. It is for this reason that the authorities must use all available
means to combat racism, thereby reinforcing democracy's vision of a society in
which diversity is not perceived as a threat but as a source of enrichment (Nachova and Others
v. Bulgaria [GC], nos. 43577/98 and
43579/98, § 145, ECHR 2005‑...; and Timishev
v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005-...). The
Court has also held that no difference in treatment which is based exclusively
or to a decisive extent on a person's ethnic origin is capable of being
objectively justified in a contemporary democratic society built on the
principles of pluralism and respect for different cultures (Timishev, cited above, § 58).
177. As to the burden of
proof in this sphere, the Court has established that once the applicant has
shown a difference in treatment, it is for the Government to show that it was
justified (see, among other authorities, Chassagnou and Others v. France [GC], nos.
25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999‑III; and Timishev,
cited above, § 57).
178. As regards the question
of what constitutes prima facie evidence capable of shifting the burden of
proof on to the respondent State, the Court stated in Nachova and Others (cited above, § 147) that in proceedings before
it there are no procedural barriers to the admissibility of evidence or
pre-determined formulae for its assessment. The Court adopts the conclusions
that are, in its view, supported by the free evaluation of all evidence,
including such inferences as may flow from the facts and the parties'
submissions. According to its established case-law, proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact. Moreover, the level of persuasion
necessary for reaching a particular conclusion and, in this connection, the
distribution of the burden of proof are intrinsically linked to the specificity
of the facts, the nature of the allegation made and the Convention right at
stake.
179. The Court has also
recognised that Convention proceedings do not in all cases lend themselves to a
rigorous application of the principle affirmanti
incumbit probatio (he who alleges something must prove that allegation – Aktaş v. Turkey (extracts), no. 24351/94, § 272, ECHR 2003‑V). In certain
circumstances, where the events in issue lie wholly, or in large part, within
the exclusive knowledge of the authorities, the burden of proof may be regarded
as resting on the authorities to provide a satisfactory and convincing
explanation (Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000-VII; and Anguelova
v. Bulgaria, no. 38361/97, § 111, ECHR 2002‑IV). In the case of Nachova and Others, cited above, §
157), the Court did not rule out requiring a respondent Government to disprove
an arguable allegation of discrimination in certain cases, even though it
considered that it would be difficult to do so in that particular case in which
the allegation was that an act of violence had been motivated by racial
prejudice. It noted in that connection that in the legal systems of many
countries proof of the discriminatory effect of a policy, decision or practice would
dispense with the need to prove intent in respect of alleged discrimination in
employment or in the provision of services.
180. As to whether
statistics can constitute evidence, the Court has in the past stated that
statistics could not in themselves disclose a practice which could be
classified as discriminatory (Hugh Jordan,
cited above, § 154). However, in more recent cases on the question of
discrimination, in which the applicants alleged a difference in the effect of a
general measure or de facto situation
(Hoogendijk, cited above; and Zarb Adami, cited above, §§ 77-78),
the Court relied extensively on statistics produced by the parties to establish
a difference in treatment between two groups (men and women) in similar
situations.
Thus, in the Hoogendijk decision the Court stated:
“[W]here an applicant is able to show, on the basis of undisputed official
statistics, the existence of a prima facie indication that a specific rule –
although formulated in a neutral manner – in fact affects a clearly higher
percentage of women than men, it is for the respondent Government to show that
this is the result of objective factors unrelated to any discrimination on
grounds of sex. If the onus of demonstrating that a difference in impact for
men and women is not in practice discriminatory does not shift to the
respondent Government, it will be in practice extremely difficult for
applicants to prove indirect discrimination.”
181. Lastly, as noted in previous cases, the vulnerable position
of Roma/Gypsies means that special consideration should be given to their needs
and their different lifestyle both in the relevant regulatory framework and in
reaching decisions in particular cases (Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR
2001‑I; and Connors v. the United
Kingdom, no. 66746/01, § 84, 27 May 2004).
In Chapman (cited above, §§
93-94), the Court also observed that there could be said to be an emerging
international consensus amongst the Contracting States of the Council of Europe
recognising the special needs of minorities and an obligation to protect their
security, identity and lifestyle, not only for the purpose of safeguarding the
interests of the minorities themselves but to preserve a cultural diversity of
value to the whole community.
2. Application
of the aforementioned principles to the instant case
182. The Court notes that as
a result of their turbulent history and constant uprooting the Roma have become
a specific type of disadvantaged and vulnerable minority (see also the general
observations in the Parliamentary Assembly's Recommendation no. 1203 (1993) on
Gypsies in Europe, cited in paragraph 56 above and point 4 of its
Recommendation no. 1557 (2002): 'The legal situation of Roma in Europe',
cited in paragraph 58 above). As the Court has noted in previous cases, they
therefore require special protection (see paragraph 181
above). As is attested by the activities of numerous European and international
organisations and the recommendations of the Council of Europe bodies (see
paragraphs 54-61 above), this protection also extends
to the sphere of education. The present case therefore warrants particular
attention, especially as when the applications were lodged with the Court the
applicants were minor children for whom the right to education was of paramount
importance.
183. The applicants'
allegation in the present case is not that they were in a different situation
from non-Roma children that called for different treatment or that the
respondent State had failed to take affirmative action to correct factual
inequalities or differences between them (Thlimmenos,
cited above, § 44; and Stec and Others,
cited above, § 51). In their submission, all that has to be established is
that, without objective and reasonable justification, they were treated less
favourably than non-Roma children in a comparable situation and that this
amounted in their case to indirect discrimination.
184. The Court has already accepted
in previous cases that a difference in treatment may take the form of disproportionately
prejudicial effects of a general policy or measure which, though couched in
neutral terms, discriminates against a group (Hugh Jordan, cited above, § 154; and Hoogendijk, cited above). In accordance with, for instance, Council
Directives 97/80/EC and
2000/43/EC (see paragraphs 82 and 84 above) and the definition provided
by ECRI (see paragraph 60 above), such a situation may amount
to “indirect discrimination”, which does not necessarily require a
discriminatory intent.
(a) Whether a presumption of indirect discrimination arises in
the instant case
185. It was
common ground that the impugned difference in treatment did not result from the
wording of the statutory provisions on placements in special schools in force
at the material time. Accordingly, the issue in the instant case is whether the
manner in which the legislation was applied in practice resulted in a
disproportionate number of Roma children – including the applicants – being
placed in special schools without justification, and whether such children were
thereby placed at a significant disadvantage.
186. As mentioned above, the
Court has noted in previous cases that applicants may have difficulty in
proving discriminatory treatment (Nachova
and Others, cited above, §§ 147 and 157). In order to guarantee those
concerned the effective protection of their rights, less strict evidential
rules should apply in cases of alleged indirect discrimination.
187. On this point, the
Court observes that Council Directives 97/80/EC and 2000/43/EC stipulate that
persons who consider themselves wronged because the principle of equal
treatment has not been applied to them may establish, before a domestic
authority, by any means, including on the basis of statistical evidence, facts
from which it may be presumed that there has been discrimination (see
paragraphs 82 and 83 above). The recent
case-law of the Court of Justice of the European Communities (see paragraphs 88-89 above) shows that
it permits claimants to rely on statistical evidence and the national courts to
take such evidence into account where it is valid and significant.
The Grand
Chamber further notes the information furnished by the third-party interveners
that the courts of many countries and the supervisory bodies of the United
Nations treaties habitually accept statistics as evidence of indirect
discrimination in order to facilitate the victims' task of adducing prima facie
evidence.
The Court also recognised the importance of official statistics in the
aforementioned cases of Hoogendijk and Zarb Adami and has shown that it is prepared to accept and take
into consideration various types of evidence (Nachova and Others, cited above,
§ 147).
188. In
these circumstances, the Court considers that when it comes to assessing the
impact of a measure or practice on an individual or group, statistics which
appear on critical examination to be reliable and significant will be
sufficient to constitute the prima facie evidence the applicant is required to
produce. This does not, however, mean that indirect discrimination cannot be
proved without statistical evidence.
189. Where an applicant alleging
indirect discrimination thus establishes a rebuttable presumption that the
effect of a measure or practice is discriminatory, the burden then shifts to the
respondent State, which must show that the difference in treatment is not
discriminatory (see, mutatis
mutandis, Nachova and Others, cited above, § 157). Regard being had
in particular to the specificity of the facts and the nature of the allegations
made in this type of case (ibid., § 147), it would
be extremely difficult in practice for applicants to prove indirect
discrimination without such a shift in the burden of proof.
190. In the
present case, the statistical data submitted by the applicants was obtained
from questionnaires that were sent out to the head teachers of special and
primary schools in the town of
191. The Grand Chamber
observes that these figures are not disputed by the Government and that they
have not produced any alternative statistical evidence. In view of their
comment that no official information on the ethnic origin of the pupils exists,
the Court accepts that the statistics submitted by the applicants may not be
entirely reliable. It nevertheless considers that these figures reveal a
dominant trend that has been confirmed both by the respondent State and the
independent supervisory bodies which have looked into the question.
192. In their reports
submitted in accordance with Article 25 § 1 of the Framework Convention for the
Protection of National Minorities, the Czech authorities accepted that in 1999
Roma pupils made up between 80% and 90% of the total number of pupils in some
special schools (see paragraph 66 above) and that in 2004 “large
numbers” of Roma children were still being placed in special schools (see
paragraph 67 above). The Advisory Committee on
the Framework Convention observed in its report of 26 October 2005 that
according to unofficial estimates Roma accounted for up to 70% of pupils
enrolled in special schools. According to the report published by ECRI in 2000,
Roma children were “vastly
overrepresented” in special schools. The Committee on the Elimination of Racial Discrimination noted in its concluding observations of 30 March 1998 that a disproportionately large
number of Roma children were placed in special schools (see paragraph 99 above). Lastly,
according to the figures supplied by the European Monitoring Centre on Racism and
Xenophobia, more than half of Roma children in the
193. In the Court's view,
the latter figures, which do not relate solely to the
194. Where it has been shown
that legislation produces such a discriminatory effect, the Grand Chamber
considers that, as with cases concerning employment or the provision of
services, it is not necessary in cases in the educational sphere (see, mutatis mutandis, Nachova and Others, cited above, § 157) to prove any discriminatory
intent on the part of the relevant authorities (see paragraph 184 above).
195. In these circumstances,
the evidence submitted by the applicants can be regarded as sufficiently
reliable and significant to give rise to a strong presumption of indirect
discrimination. The burden of proof must therefore shift to the Government,
which must show that the difference in the impact of the legislation was the
result of objective factors unrelated to ethnic origin.
(b) Objective
and reasonable justification
196. The Court reiterates
that a difference in treatment is discriminatory if “it has no objective and
reasonable justification”, that is, if it does not pursue a “legitimate aim” or
if there is not a “reasonable relationship of proportionality” between the
means employed and the aim sought to be realised (see, among many other
authorities, Larkos v. Cyprus [GC],
no. 29515/95, § 29, ECHR 1999-I; and Stec
and Others, cited above, § 51). Where
the difference in treatment is based on race, colour or ethnic origin, the
notion of objective and reasonable justification must be interpreted as
strictly as possible.
197. In the instant case,
the Government sought to explain the difference in treatment between Roma
children and non-Roma children by the need to adapt the education system to the
capacity of children with special needs. In the Government's submission, the
applicants were placed in special schools on account of their specific
educational needs, essentially as a result of their low intellectual capacity
measured with the aid of psychological tests in educational psychology centres.
After the centres had made their recommendations regarding the type of school
in which the applicants should be placed, the final decision had lain with the
applicants' parents and they had consented to the placements. The argument that
the applicants were placed in special schools on account of their ethnic origin
was therefore unsustainable.
For their
part, the applicants strenuously contested the suggestion that the
disproportionately high number of Roma children in special schools could be
explained by the results of the intellectual capacity tests or be justified by
parental consent.
198. The Court accepts that the
Government's decision to retain the special-school system was motivated by the desire
to find a solution for children with special educational needs. However, it
shares the disquiet of the other Council of Europe institutions who have
expressed concerns about the more basic curriculum followed in these schools
and, in particular, the segregation the system causes.
199. The
Grand Chamber observes, further, that the tests used to assess the children's
learning abilities or difficulties have given rise to controversy and continue
to be the subject of scientific debate and research. While accepting that it is
not its role to judge the validity of such tests, various factors in the
instant case nevertheless lead the Grand Chamber to conclude that the results
of the tests carried out at the material time were not capable of constituting
objective and reasonable justification for the purposes of Article 14 of the
Convention.
200. In the
first place, it was common ground that all the children who were examined sat
the same tests, irrespective of their ethnic origin. The Czech authorities
themselves acknowledged in 1999 that “Romany children with average or above-average intellect” were often
placed in such schools on the basis of the results of psychological tests and
that the tests were conceived for the majority population and did not take Roma
specifics into consideration (see paragraph 66 above). As a result, they had
revised the tests and methods used with a view to ensuring that they “were not
misused to the detriment of Roma children” (see paragraph 72 above).
In addition,
various independent bodies have expressed doubts over the adequacy of the
tests. Thus, the Advisory Committee on the Framework Convention for the
Protection of National Minorities observed that children who were not mentally
handicapped were frequently placed in these schools “[owing] to real or
perceived language and cultural differences between Roma and the majority”. It
also stressed the need for the tests to be “consistent, objective and
comprehensive” (see paragraph 68 above). ECRI noted that the
channelling of Roma children to special schools for the mentally-retarded was
reportedly often “quasi-automatic” and needed to be examined to ensure that any
testing used was “fair” and that the true abilities of each child were “properly
evaluated” (see paragraphs 63-64 above). The Council of Europe
Commissioner for Human Rights noted that Roma children were frequently placed
in classes for children with special needs “without an adequate psychological or
pedagogical assessment, the real criteria clearly being their ethnic origin”
(see paragraph 77 above).
Lastly, in the
submission of some of the third-party interveners, placements following the
results of the psychological tests reflected the racial prejudices of the
society concerned.
201. The
Court considers that, at the very least, there is a danger that the tests were
biased and that the results were not analysed in the light of the particularities
and special characteristics of the Roma children who sat them. In these
circumstances, the tests in question cannot serve as justification for the
impugned difference in treatment.
202. As regards parental consent, the
Court notes the Government's submission that this was the decisive factor
without which the applicants would not have been placed in special schools. In
view of the fact that a difference in treatment has been established in the
instant case, it follows that any such consent would signify an acceptance of
the difference in treatment, even if discriminatory, in other words a waiver of
the right not to be discriminated against. However, under the Court's case-law,
the waiver of a right guaranteed by the Convention – in so far as such a waiver
is permissible – must be established in an unequivocal manner, and be given in full knowledge of the
facts, that is to say on the basis of informed consent (Pfeifer and Plankl v. Austria,
judgment of 25 February 1992, Series A no. 227, §§ 37-38) and without
constraint (Deweer v. Belgium,
judgment of 27 February 1980, Series A no. 35, § 51).
203. In the
circumstances of the present case, the Court is not satisfied that the parents
of the Roma children, who were members of a disadvantaged community and often
poorly educated, were capable of weighing up all the aspects of the situation
and the consequences of giving their consent. The Government themselves
admitted that consent in this instance had been given by means of a signature on
a pre-completed form that contained no information on the available
alternatives or the differences between the special-school curriculum and the
curriculum followed in other schools. Nor do the domestic authorities appear to
have taken any additional measures to ensure that the Roma parents received all
the information they needed to make an informed decision or were aware of the
consequences that giving their consent would have for their children's futures.
It also appears indisputable that the Roma parents were faced with a dilemma: a
choice between ordinary schools that were ill-equipped to cater for their
children's social and cultural differences and in which their children risked
isolation and ostracism and special schools where the majority of the pupils
were Roma.
204. In view of the
fundamental importance of the prohibition of racial discrimination (see Nachova and Others, cited above, § 145; and Timishev,
cited above, § 56), the Grand Chamber considers that, even assuming the
conditions referred to in paragraph 202 above were satisfied, no waiver of
the right not to be subjected to racial discrimination can be accepted, as it would
be counter to an important public interest (see, mutatis mutandis, Hermi v.
Italy [GC], no. 18114/02, § 73, ECHR 2006‑...).
(c) Conclusion
205. As is apparent from the
documentation produced by ECRI and the report of the Commissioner for Human
Rights of the Council of Europe, the
206. Nevertheless, whenever
discretion capable of interfering with the enjoyment of a Convention right is
conferred on national authorities, the procedural safeguards available to the
individual will be especially material in determining whether the respondent
State has, when fixing the regulatory framework, remained within its margin of
appreciation (see Buckley
v. the United Kingdom, judgment of 25 September 1996, Reports 1996‑IV, § 76; and Connors v. the United Kingdom, judgment
cited above, § 83).
207. The facts of the
instant case indicate that the schooling arrangements for Roma children were
not attended by safeguards (see paragraph 28 above) that would ensure that, in
the exercise of its margin of appreciation in the education sphere, the State
took into account their special needs as members of a disadvantaged class (see,
mutatis mutandis, Buckley, cited
above, § 76; and Connors, cited above, § 84).
Furthermore, as a result of the arrangements the applicants were placed in
schools for children with mental disabilities where a more basic curriculum was
followed than in ordinary schools and where they were isolated from pupils from
the wider population. As a result, they received an education which compounded
their difficulties and compromised their subsequent personal development
instead of tackling their real problems or helping them to integrate into the
ordinary schools and develop the skills that would facilitate life among the majority
population. Indeed, the Government have implicitly admitted that job
opportunities are more limited for pupils from special schools.
208. In these circumstances
and while recognising the efforts made by the Czech authorities to ensure that
Roma children receive schooling, the Court is not satisfied that the difference
in treatment between Roma children and non-Roma children was objectively and
reasonably justified and that there existed a reasonable relationship of
proportionality between the means used and the aim pursued. In that connection,
it notes with interest that the new legislation has abolished special schools
and provides for children with special educational needs, including socially
disadvantaged children, to be educated in ordinary schools.
209. Lastly, since it has
been established that the relevant legislation as applied in practice at the
material time had a disproportionately prejudicial effect on the Roma community,
the Court considers that the applicants as members of that community
necessarily suffered the same discriminatory treatment. Accordingly, it does
not need to examine their individual cases.
210. Consequently, there has
been a violation in the instant case of Article 14 of the Convention, read in
conjunction with Article 2 of Protocol No. 1, as regards each of the
applicants.
IV. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
211. Article 41 of the
Convention provides:
“If the Court finds
that there has been a violation of the Convention or the Protocols thereto, and
if the internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
212. The applicants did not
allege any pecuniary damage.
213. They claimed 22,000
euros (EUR) each (making a total of EUR 396,000) for the non-pecuniary
damage they had sustained, including educational, psychological and emotional
harm and compensation for the anxiety, frustration and humiliation they had
suffered as a result of their discriminatory placement in special schools. They
stressed that the effects of this violation were serious and on-going and
affected all areas of their lives.
214. Further, referring to
the judgments in Broniowski v. Poland
([GC], no. 31443/96, § 189, ECHR 2004‑V) and Hutten-Czapska v. Poland ([GC],
no. 35014/97, §§ 235-237, ECHR 2006‑...), the applicants said
that the violation of their rights “was neither prompted by an isolated
incident nor attributable to the particular turn of events in [their] case, but
was rather the consequence of administrative and regulatory conduct on the part
of the authorities towards an identifiable class of citizens”. Accordingly, in
their submission, general measures had to be taken at the national level either
to remove any hindrance to the implementation of the right of the numerous
persons affected by the situation or to provide equivalent redress.
215. The Government submitted,
with particular regard to the psychological and educational damage, that it related
to the complaints under Article 3 of the Convention and Article 2 of Protocol
No. 1 taken individually, which had been declared inadmissible by the Court in
its decision of 1 March 2005. In their submission, there was therefore no
causal link between any violation of the Convention and the alleged
non-pecuniary damage. They further contended that the sum claimed by the applicants
was excessive and that any finding of a violation would constitute sufficient
just satisfaction.
216. The Court reiterates,
firstly, that by virtue of Article 46 of the Convention the High Contracting
Parties have undertaken to abide by the final judgments of the Court in any
case to which they are parties, execution being supervised by the Committee of
Ministers. It follows, inter alia,
that a judgment in which the Court finds a breach imposes on the respondent
State a legal obligation not just to pay those concerned the sums awarded by
way of just satisfaction under Article 41, but also to select, subject to supervision
by the Committee of Ministers, the general and/or, if appropriate, individual
measures to be adopted in their domestic legal order to put an end to the
violation found by the Court and to redress so far as possible the effects. However,
the respondent State remains free to choose the means by which it will
discharge its legal obligation under Article 46 of the Convention, provided
that such means are compatible with the conclusions set out in the Court's
judgment (Broniowski, cited above, § 192;
and Čonka
v. Belgium, no. 51564/99, § 89, ECHR 2002‑I). The Court notes in this
connection that the legislation impugned in the instant case has been repealed
and that the Committee of Ministers recently made recommendations to the member
States on the education of Roma/Gypsy children in
217. The Court cannot
speculate on what the outcome of the situation complained of by the applicants
would have been had they not been placed in special schools. It is clear,
however, that they have sustained non-pecuniary damage – in particular as a
result of the humiliation and frustration caused by the indirect discrimination
of which they were victims – for which the finding of a violation of the
Convention does not afford sufficient redress. However, the amounts claimed by
the applicants are excessive. Ruling on an equitable basis, the Court assesses
the non-pecuniary damage sustained by each of the applicants at EUR 4,000.
B. Costs
and expenses
218. The applicants have not
amended the initial claim they made before the Chamber. The costs and expenses
do not, therefore, include those incurred in the proceedings before the Grand
Chamber.
The Court
notes that the total amount claimed in the request signed by all the applicants'
representatives was EUR 10,737, comprising EUR 2,550 (GBP 1,750) for the fees
invoiced by Lord Lester of Herne Hill, Q.C., and EUR 8,187 for the costs
incurred by Mr D. Strupek in the domestic proceedings and those before the
Chamber. However, the bill of costs drawn up by Lord Lester, enclosed with the
claim for just satisfaction, put his fees at GBP 11,750 (approximately EUR
17,000), including GBP 1,750 in VAT, for 45 hours of legal work. The applicants'
other representatives, Mr J. Goldston and the European Centre for
Roma Rights, have not sought the reimbursement of their costs.
219. The Government noted
that apart from a detailed list of the legal services he had provided, Mr
Strupek had not submitted any invoice to prove that the alleged costs and
expenses had in fact been paid to him by the applicants. They did not comment
on the discrepancy between the claim for just satisfaction as formulated by the
applicants and the fee note submitted by Lord Lester. The Government further
pointed out that only part of the application had been declared admissible and
continued to be the subject of examination by the Court. They therefore
submitted that the applicants should not be awarded more than a reasonable
portion (not exceeding EUR 3,000) of the costs and expenses claimed.
220. The Court reiterates
that legal costs are only recoverable to the extent that they relate to the
violation that has been found (Beyeler v. Italy (just
satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). In the present case, this
is solely the violation of Article 14 of the Convention read in conjunction
with Article 2 of Protocol No. 1. The Court notes that Lord Lester has
submitted details of his professional fees, which were invoiced to the European
Centre for Roma Rights. Mr Strupek has produced a breakdown of the 172 hours of
legal services he rendered at an hourly rate of EUR 40, to which has to be
added VAT at the rate of 19%.
Having regard
to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court
makes a joint award to all the applicants of EUR 10,000 for costs and expenses.
C. Default
interest
221. The Court considers it
appropriate that the default interest should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage
points.
FOR THESE
REASONS, THE COURT
1. Dismisses unanimously the Government's
preliminary objection;
2. Holds by thirteen votes to four that
there has been a violation of Article 14
read in conjunction with Article 2 of Protocol No. 1;
3. Holds by thirteen votes to four
(a) that
the respondent State is to pay the applicants, within three months, the
following amounts together with any tax that may be chargeable:
(i) to
each of the eighteen applicants EUR 4,000 (four thousand euros) in respect of
non-pecuniary damage, to be converted into the currency of the respondent State
at the rate applicable on the date of payment;
(ii) jointly,
to all the applicants, EUR 10,000 (ten thousand euros) in respect of costs and
expenses, to be converted into the currency of the respondent State at the rate
applicable on the date of payment;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amounts at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three
percentage points;
4. Dismisses unanimously the remainder of
the applicants' claim for just satisfaction.
Done in
English and in French, and delivered at a public hearing in the Human Rights
Building,
Michael O'Boyle Nicolas
Bratza
Deputy Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules
of Court, the dissenting opinions of Mr Zupančič, Mr Jungwiert, Mr
Borrego Borrego and Mr Šikuta are annexed to this judgment.
N.B.
M.O'B.
DISSENTING
OPINION OF JUDGE ZUPANČIČ
I join
entirely in the comprehensive dissenting opinion of Judge Karel Jungwiert. I
wish only to add the following.
As the
majority explicitly, and implicitly elsewhere in the judgment, admitted in
§§ 198 and 205 – the Czech Republic is the only Contracting State which
has in fact tackled the special educational troubles of Roma children. It then
borders on the absurd to find the
No amount of
politically charged argumentation can hide the obvious fact that the Court in
this case has been brought into play for ulterior purposes, which have little
to do with the special education of Roma children in the Czech Republic.
The future
will show what specific purpose this precedent will serve.
DISSENTING
OPINION OF JUDGE JUNGWIERT
(Translation)
1. I
strongly disagree with the majority's finding in the present case of a violation
of Article 14 of the Convention, read in conjunction with Article 2 of Protocol
No. 1.
While I am
able to agree to an extent with the formulation of the relevant principles
under Article 14 in the judgment, I cannot accept the manner in which the majority
have applied those principles in the instant case.
2. Before
specifying all the matters with which I disagree, I would like to put this
judgment into a more general perspective.
It represents
a new development in the Court's case-law, as it set about evaluating and
criticising a country's entire education system.
However
authoritative the precedents cited at paragraphs 175 to 181 of the judgment may
be, in practice they have very little in common with the instant case other
perhaps than the Roma origin of the applicants in most of the cases (for
instance in Nachova and Buckley, among others).
3. In
my opinion, for the principles to be applied correctly requires, firstly, a
sound knowledge of the facts and also of the circumstances of the case,
primarily the historical context and the situation obtaining in other European
countries.
As regards
the historical context, the data presented in the judgment (paragraphs 14 to
16) provides information that is inaccurate, inadequate and of a very general
nature.
The facts as
presented in the judgment do not permit the slightest comparison to be made
between Roma communities in
4. I
will endeavour to supply some facts and figures to make up for this lack of
information.
I should
perhaps begin with the awful truth that, so far as the current territory of the
The situation
is thus very different from that in other countries: the Czech Roma, almost all
of whom were exterminated, were replaced from 1945 onwards by successive waves
of new arrivals in their tens of thousands, mainly from
they did not speak the Czech language. The same is not true of other
countries on whose territory the Roma have – in principle – been living for decades
and even centuries and have attained a degree of familiarity with the
environment and language.
To complete
and close this incursion into the historical and demographic context, I believe
that a further comparison, which helps to explain the scale and complexity of
the problem, would be useful.
An estimation
of the numbers of Roma living in certain European countries has given the
following minimum and maximum figures (which of course remain approximate):
United Kingdom 100,000 – 150,000 for
a population of 60,000,000
These figures
provide an indication of the scale of the problem facing the
5. An
important question that needs to be asked is what is the position in
The question
of the schooling and education of Roma children has for almost 30 years been
the subject of analysis and, on the initiative of the Council of Europe,
proposals by the European Commission and other institutions.
The judgment
contains more than 25 pages (paragraphs 54 to 107) of citations from Council of
Europe texts, Community law and practice, UN materials and other sources.
However, the
majority of the recommendations, reports and other documents it cites are
relatively vague, largely theoretical and, most important of all, were
published after the period with
which the instant case is concerned (1996-1999 – see paragraph 19 of the
judgment).
I should
therefore like to quote the author mentioned above, whose opinion I agree with.
In his book Roma in Europe, J.-P.
Liégeois stresses:
“We must avoid
over-use of vague terms ('emancipation', 'autonomy', 'integration', 'inclusion',
etc.) which mask reality, put things in abstract terms and have no functional
value ...
... officials
often formulate complex questions and demand immediate answers, but such an
approach leads only to empty promises or knee-jerk responses that assuage the
electorate, or the liberal conscience, in the short term.”[5]
In this
connection, the sole resolution on the subject that is concrete and accurate –
a major founding text of perhaps historic value – is the Resolution of the Council and the Ministers of Education meeting within
the Council of 22 May 1989 on school provision for gypsy and traveller children[6].
6. Regrettably
and to my great surprise, this crucial document is not among the sources cited
in the Grand Chamber's judgment.
I
should therefore like to quote some of the passages from this resolution:
“THE COUNCIL
AND THE MINISTERS FOR EDUCATION, MEETING WITHIN THE COUNCIL,
...
Considering
that the present situation is disturbing in general, and in particular with
regard to schooling, that only 30 to 40
% of gypsy or traveller children attend school with any regularity, that half
of them have never been to school [emphasis added], that a very small
percentage attend secondary school and beyond, that the level of educational
skills, especially reading and writing, bears little relationship to the
presumed length of schooling, and that the illiteracy rate among adults is
frequently over 50 % and in some places 80 % or more,
Considering
that over 500 000 children are involved and that this number must constantly be
revised upwards on account of the high proportion of young people in gypsy and
traveller communities, half of whom are under 16 years of age,
Considering
that schooling, in particular by providing the means of adapting to a changing
environment and achieving personal and professional autonomy, is a key factor
in the cultural, social and economic future of gypsy and traveller communities,
that parents are aware of this fact and their desire for schooling for their
children is increasing,
...”
7. How
astonishing! In the twelve countries that formed the European Union in 1989 it
is acknowledged that between 250,000 and 300,000 children had never attended
school.
It is an
inescapable fact that the trend since then has tended to confirm this
diagnosis. There is nothing to suggest an improvement in the situation in this
sphere, especially with the enlargement of the European Union. The population
of the Roma community is estimated (by the same source) at 400,000 in
8. I
am determined to bring this terrible and largely concealed truth out into the
open, as I consider it shameful that such a situation should exist in
9. Statistical
data on the former
A numerical
comparison of the Czech Republic data on the number of children born and the
number attending school shows school attendance levels attaining almost 100%
twenty years later[7].
10. Nevertheless,
in this sorry state of affairs, some people consider it necessary to focus
criticism on the
Further, for
the school year 1989-1990 there were 7,957 teachers for 58,889 pupils and for
the school year 1992-1993 8,325 teachers for 48,394 pupils[8],
that is to say one teacher for every
seven pupils.
11. For
years, European States have produced an often strange mix of achievements and
projects which combine successes with failures. The problem concerns the
education systems of many countries, not just the special schools[9].
The
– parental
consent,
– recommendations
of the educational psychology centres,
– a
right of appeal,
– an
opportunity to transfer back to an ordinary primary school from a special
school.
In a way, the
Despite this,
the majority feel compelled to say that it is not satisfied that the difference
in treatment between Roma children and non-Roma children pursued a legitimate
aim of adapting the education system to the needs of the former and that there
existed a reasonable relationship of proportionality between the means used and
the aim pursued (see paragraph 208 of the judgment).
No one has
conveyed the following opinion better than Arthur Schopenhauer, who was the
first to express it:
“This peculiar
satisfaction in words contributes more than anything else to the perpetuation
of errors. For, relying on the words and phrases received from his
predecessors, each one confidently passes over obscurities and problems...”[10]
12. I
fully accept that while much has been done to help certain categories of pupil
acquire a basic knowledge, the situation regarding the education of Roma
children in the Czech Republic is far from ideal and leaves room for
improvement.
Nevertheless,
a closer examination of the situation leads me to ask but one question: which
country in
13. I
consider it important both in the analyses and in all the assessments and
conclusions for a distinction to be drawn between what is desirable and what
one might term realistic, possible or simply feasible.
This rule
should also apply to the sphere of law generally and in the instant case in concreto. According to the
applicants, no measures were taken to enable Roma children to overcome their
cultural and linguistic disadvantages in the tests (see paragraph 40).
However, this
is but another excellent illustration of their lack of realism. It is, in my
view, illusory to think that a situation that has obtained for decades, even
centuries, can be changed from one day to the next by a few statutory
provisions. Unless the idea is to dispense with the tests altogether or to make
them an irrelevance.
14. Nor should it be
forgotten that every school system entails not only education but also a
process of assessment, differentiation, competition and selection. This fact of
life is currently the subject of a wide debate on the reform of the French
education system. The President of the
“No one should
go into the first form unless he has shown that he is able to follow lower
secondary-school education. No one should enter the fifth form unless he has
demonstrated his ability to follow an upper secondary-school education.”
15. I
find the conclusions reached by the majority (see paragraphs 205 to 210 of the
judgment) somewhat contradictory. They note that difficulties exist in the
education of Roma children not just in the
To describe the total absence of a school education for
half of Roma children (see points 6 and 7 above) in a number of States as
“difficulties” is an extraordinary euphemism. To explain this illogical
approach, the majority note with satisfaction that, unlike some countries, the
The implication
is that it is probably preferable and less risky to do nothing and to leave
things as they are elsewhere, in other words to make no effort to confront the
problems with which a large section of the Roma community is faced.
16. In
my view, such abstract, theoretical reasoning renders the majority's
conclusions wholly unacceptable.
DISSENTING
OPINION OF JUDGE BORREGO BORREGO
(Translation)
1. I
am somewhat saddened by the judgment in the present case.
2. In
2002 Judge Bonello said that he found it “particularly
disturbing that the Court, in over fifty years of pertinacious judicial
scrutiny, has not, to date, found one single instance of violation of the right
[guaranteed by] ... Article 2 or ... Article 3 induced by the race ... of the
victim” (Anguelova v. Bulgaria,
judgment of 13 June 2002, no. 38361/97, dissenting opinion). While I agree
with Judge Bonello's criticism that the absence, five years ago, of a single
case of racial discrimination concerning the core Convention rights was
disturbing, the judgment in the present case has now got the Court off to a
flying start. The Grand Chamber has in this judgment behaved like a Formula One
car, hurtling at high speed into the new and difficult terrain of education
and, in so doing, has inevitably strayed far from the line normally followed by
the Court.
3. In
my opinion, the Second Section's judgment of 17 February 2006 in the present
case was sound and wise and a good example of the Court's case-law.
Regrettably, I cannot say the same of the Grand Chamber judgment. (The Chamber
judgment is 17 pages long, the Grand Chamber's, 78 pages, which all goes to
show that the length of a judgment is no measure of its sagacity).
I will focus
on two points only.
4. The
approach:
After noting
the concerns of various organisations about the realities of the Roma's
situation, the Chamber stated: “The Court
points out, however, that its role is different from that of the aforementioned
bodies and that, like the
5. Yet
the Grand Chamber does the exact opposite. In contradiction with the role which
all judicial bodies assume, the entire judgment is devoted to assessing the
overall social context – from the first page (“historical background”) to the
last paragraph, including a review of the “Council of Europe sources” (14
pages), “Community law and practice” (5 pages), United Nations materials (7
pages) and “other sources” (3 pages, which, curiously, with the exception of
the reference to the European Monitoring Centre, are taken exclusively from the
Anglo-American system, that is, the House of Lords and the United States
Supreme Court). Thus, to cite but one example, the Court states at the start of
paragraph 182: ”The Court notes that as a
result of their turbulent history and constant uprooting the Roma have become a
specific type of disadvantaged and vulnerable minority”. Is it the Court's
role to be doing this?
6. Following
this same line, which to my mind is not one appropriate for a court, the Grand
Chamber stated in paragraph 209 after finding a discriminatory difference in
treatment between Roma and non-Roma children: “... since it has been established that the relevant legislation ... had
a disproportionately prejudicial effect on the Roma community, the Court
considers that the applicants as members of that community necessarily suffered
the same discriminatory treatment. Accordingly, it does not need to examine
their individual cases”.
7. This,
then, is the Court's new role: to become a second ECRI (European Commission
against Racism and Intolerance) and dispense with an examination of the
individual applications, for example the situation of applicants nos. 9, 10,
11, 16 and 17, in complete contrast to the procedure followed by the Chamber in
paragraphs 49 and 50 of its judgment.
8. At
the hearing on 17 January 2007 the representatives (from
9. None
of the applicant children or the parents of those applicants who were still
minors were present at the hearing. The individual circumstances of the
applicants and their parents were forgotten. Since Rule 36 § 4 of the Rules of
Court states that representatives act on behalf of the applicants, I put a very
simple question to the two British and American representatives – had they met
the minor applicants and/or their parents? And had they been to
10. I
still have the same impression: the hearing room of the Grand Chamber had
become an ivory tower, divorced from the life and problems of the minor
applicants and their parents, a place where those in attendance could display
their superiority over the absentees.
11. The
Roma parents and the education of their children:
On the
subject of the children's education, the Chamber judgment states: “[T]he Court notes that it was the parents'
responsibility, as part of their natural duty to ensure that their children
receive an education...” (at paragraph 51). After an analysis of the facts
the Chamber went on to hold that there had been no violation of Article 14,
read in conjunction with Article 2 of Protocol No. 1.
12. I
consider the stance taken by the Grand Chamber with respect to the parents of
the minor applicants to be extremely preoccupying and, since it concerned all
the Roma parents, one that is quite frankly, unacceptable. It represents a
major deviation from the norm and reflects a sentiment of superiority that
ought to be inconceivable in a court of human rights and strikes at the human
dignity of the Roma parents.
13. The
Grand Chamber begins by calling into question the capacity of Roma parents to
perform their parental duty. The judgment states: “The
Court is not satisfied that the
parents of the Roma children, who were members of a disadvantaged community and
often poorly educated, were capable of weighing up all the aspects of the
situation and the consequences of giving their consent” (at paragraph 203). Such
assertions are unduly harsh, superfluous and, above all, unwarranted.
14. The
Grand Chamber then proceeds to compound its negative appraisal of the Roma
parents: “ The Grand Chamber
considers that, even assuming the conditions referred to in paragraph 201 above
were satisfied, no waiver of the right not to be subjected to racial
discrimination can be accepted, as it would be counter to an important public
interest...” (paragraph 204).
I find this
particularly disquieting. The Grand Chamber asserts that all parents of Roma children, “even assuming” them to be capable of
giving informed consent, are unable to choose their children's school. Such a
view can lead to the awful experiences with which we are only too familiar of
children being “abducted” from their parents when the latter belong to a
particular social group because certain “well-intentioned” people feel
constrained to impose their conception of life on all. An example of the sad
human tradition of fighting racism through racism.
16. How
cynical: the parents of the applicant minors are not qualified to bring up
their children, even though they are qualified to sign an authority in favour
of British and North American representatives whom they do not even know!
17. Clearly,
I agree with the dissenting opinions expressed by my colleagues, whose views I
wholly subscribe to.
18. Any
departure by the
DISSENTING OPINION OF JUDGE ŠIKUTA
To my great
regret, I cannot share the opinion of the majority, which has found that in the
instant case there has been a violation of Article 14 of the Convention read in
conjunction with Article 2 of Protocol No. 1. I wish to briefly explain my main
reasons for not concurring.
I do agree
that, in general terms, the situation of Roma in Central and
The Court's
case-law[11] clearly establishes that a
difference in treatment of “persons in otherwise similar situations” does not
constitute discrimination contrary to Article 14 where it has an objective and
reasonable justification; that is, where it can be shown that it pursues “a
legitimate aim” or there is “a reasonable relationship of proportionality”
between the means employed and the aim sought to be realised. The validity of
the justification must be assessed by reference to the aim and effects of the
measures under consideration, regard being had to the principles that apply in
democratic societies.
In assessing
whether and to what extent differences in “otherwise similar situations”
justify different treatment, the Court has allowed the Contracting States a
certain margin of appreciation[12]. The fact that the Government chose
to fulfil the task of providing all children with compulsory education through
the establishment of special schools was fully within the scope of their margin
of appreciation.
The special
schools were introduced for children with special learning difficulties and
special learning needs as a way of fulfilling the Government's task of securing
to all children a basic education, which was fully compulsory. The introduction
of special schools should be seen as another step in the above-mentioned
process, whose ultimate aim was to reach a satisfactory, or at least an
improved, educational situation. The introduction of special schooling, though
not a perfect solution, should be seen as positive action on the part of the
State to help children with special educational needs to overcome their
different level of preparedness to attend an ordinary school and to follow the
ordinary curriculum.
It can
therefore be seen that, in general, there existed objective and reasonable
justification for treating children placed in special schools differently from
those placed in ordinary schools, on the basis of objective results in the
psychological tests, administered by qualified professionals, who were able to
select suitable methods. I do agree that the treatment of the children
attending ordinary schools on the one hand and of those attending special
schools on the other was different. But, at the same time, both types of
school, ordinary and special, were accessible and also de facto attended, at the material time, by both categories of
children – Roma and non-Roma.
The only
decisive criterion, therefore, for determining which child would be recommended
to which type of school was the outcome of the psychological test, a test
designed by experts, qualified professionals, whose professionalism none of the
parties disputed. The difference in treatment of the children attending either
type of school (ordinary or special) was simply determined by the different
level of intellectual capacity of the children concerned and by their different
level of preparedness and readiness to successfully follow all the requirements
imposed by the existing school system represented by the ordinary schools.
Therefore,
isolated statistical evidence, especially when from a particular region of the
country, does not by itself enable one to conclude that the placement of the
applicants in special schools was the result of racial prejudice, because, by
way of example, special schools were attended by both Roma and, at the same
time, non-Roma children. Statistics are not by themselves sufficient to
disclose a practice which could be classified as discriminatory (Hugh Jordan v. the United Kingdom, no.
24746/94, § 154). The fact that
ordinary schools were attended by Roma children as well proves only that there
existed other selection criteria than race or ethnic origin. Also, the fact
that some of the applicants were transferred to ordinary schools proves that
the situation was not irreversible.
It should
also be noted that the parents of the children placed in the special schools
agreed to their placement and some of them actually asked the competent
authorities to place their children there. Such positive action on the part of
the applicants' parents only serves to show that they were sufficiently and
adequately informed about the existence of such schools and about their role in
the schooling system. I have no doubt that, in general, a professional will be
more competent to take a decision on the education of a minor child than its
parents. Be that as it may, had there been any doubt that a decision of the
parents to place their children in a special school was not “in the best
interest of the child”, the Child Care Department of the Ostrava Welfare
Office, which had the power and duty to bring such cases to the Juvenile Court
to assess the best interest of the child, could have intervened. But that was
not the case, as neither the Welfare Office, nor the
applicants' parents, turned to the Juvenile Court, which was competent
to deal with this issue.
Having said
all this, I have come to the conclusion that the difference in treatment was between
children attending ordinary schools on the one hand and children attending
special schools on the other, regardless of whether they were of Roma or
non-Roma origin. Such difference in treatment had an objective and reasonable
justification and pursued a legitimate aim – providing all children with
compulsory education.
However, I
have also come to the conclusion that there was no difference in treatment between
children attending the same special school, which children (Roma and non-Roma)
are to be considered as “persons in otherwise similar situations”.
I found no legal or factual ground in the instant case for the conclusion that
Roma children attending special school were treated less favourably than
non-Roma children attending the same special school. It is not acceptable to
conclude that only Roma children attending special schools were discriminated
against in comparison to non-Roma children (or all children) attending ordinary
schools, since these two groups of children are not “persons in [an] otherwise
similar situation”. It is also not acceptable to conclude this because both
“groups” had the same conditions of access and attended both types of school:
non-Roma children were attending special schools and, at the same time, Roma
children were attending ordinary schools solely on the basis of the results
achieved by passing the psychological test, which test was the same for all
children regardless of their race.
Based on the
above, I do not share the opinion that the applicants, because of their
membership of the Roma community, were subjected to discriminatory treatment by
their placement in special schools.
A N N E X
LIST OF THE APPLICANTS
1. Ms D.H. is a Czech national of Roma origin
who was born in 1989 and lives in Ostrava-Přívoz;
2. Ms S.H. is a Czech national of Roma origin
who was born in 1991 and lives in Ostrava-Přívoz;
3. Mr L.B. is a Czech national of Roma origin
who was born in 1985 and lives in Ostrava-Fifejdy;
4. Mr M.P. is a Czech national of Roma origin
who was born in 1991 and lives in Ostrava-Přívoz;
5. Mr J.M. is a Czech national of Roma origin
who was born in 1988 and lives in Ostrava-Radvanice;
6. Ms N.P. is a Czech national of Roma origin
who was born in 1989 and lives in
7. Ms D.B. is a Czech national of Roma origin
who was born in 1988 and lives in Ostrava-Heřmanice;
8. Ms A.B. is a Czech national of Roma origin
who was born in 1989 and lives in Ostrava-Heřmanice;
9. Mr R.S. is a Czech national of Roma origin
who was born in 1985 and lives in Ostrava-Kunčičky;
10. Ms K.R. is a Czech national of Roma origin who
was born in 1989 and lives in Ostrava-Mariánské Hory;
11. Ms Z.V. is a Czech national of Roma origin who
was born in 1990 and lives in Ostrava-Hrušov;
12. Ms H.K. is a Czech national of Roma origin who
was born in 1990 and lives in Ostrava-Vítkovice;
13. Mr P.D. is a Czech national of Roma origin who
was born in 1991 and lives in
14. Ms M.P. is a Czech national of Roma origin who
was born in 1990 and lives in Ostrava-Hrušov;
15. Ms D.M. is a Czech national of Roma origin who
was born in 1991 and lives in Ostrava-Hrušov;
16. Ms M.B. is a Czech national of Roma origin who
was born in 1991 and lives in
17. Ms K.D. is a Czech national of Roma origin who
was born in 1991 and lives in Ostrava-Hrušov;
18. Ms V.Š. is a Czech national of Roma origin who
was born in 1990 and lives in Ostrava-Vítkovice.
1. P.
Evans (2006), ‘Educating students with special needs: A comparison of inclusion
practices in OECD countries’, Education Canada 44 (1): 32-35.
[2]. A. Frazer (M. Miklušáková),
The Gypsies (Cikáni), Prague 2002, p.
275.
2. Nevertheless,
in a census taken of the population of the
3. In
the public debate currently underway in