CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 13 novembre 2007

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margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }       GRAND CHAMBER             CASE OF D.H. AND OTHERS v. THE CZECH REPUBLIC   (Application no. 57325/00)                     JUDGMENT       STRASBOURG   13 November 2007   In the case of D.H. and Others v. the Czech Republic, The European Court of Human Rights (Second Section), sitting as a Grand Chamber composed of:   Nicolas Bratza, President ,   Boštjan M. Zupančič,   Rıza Türmen,   Karel Jungwiert,   Josep Casadevall,   Margarita Tsatsa-Nikolovska,   Kristaq Traja,   Vladimiro Zagrebelsky,   Elisabeth Steiner,   Javier Borrego Borrego,   Alvina Gyulumyan,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   Ján Šikuta,   Ineta Ziemele,   Mark Villiger, judges , and Michael 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. 2.     The applicants were represented before the Court by the European Roma Rights Centre based in Budapest, Lord Lester of Herne Hill, QC, 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 Jean-Paul Costa, President, András Baka, Ireneu Cabral Barreto, Karel Jungwiert, Volodymyr Butkevych, Antonella Mularoni and Danutė Jočienė, judges, and Sally 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 taken 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. At the final deliberations, Kristaq Traja and Josep Casadevall, substitute judges, replaced Christos Rozakis and Peer 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 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 Education Research Association; Interights and Human Rights Watch; Minority Rights Group International, the European Network Against Racism and the European Roma Information Office; and the International Federation for Human Rights (Fédération internationale des ligues des droits de l’Homme – 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 Government replied to those comments (Rule 44 § 5). 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 17 January 2007 (Rule 59 § 3).   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, M r   P. Konůpka,   Counsel ; (b)     for the applicants Lord Lester of Herne Hill , QC, 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 website of the Roma and Travellers Division of the Council of Europe, the Roma originated from the regions situated between north-west India and the Iranian plateau. The first written traces of their arrival in Europe date back to the fourteenth century. Today there are between eight and ten million Roma living in Europe. They are to be found in almost all Council of Europe member States and indeed, in some central and east European countries, they represent over 5% of the population. The majority of them speak Romany, an Indo-European language that is understood by a very large number of Roma in Europe, despite its many variants. In general, Roma also speak the dominant language of the region in which they live, or even several languages. 13.     Although they have been in Europe since the fourteenth century, often they are not recognised by the majority of society as a fully fledged European people and they have suffered throughout their history from rejection and persecution. This culminated in their attempted extermination by the Nazis, who considered them an inferior race. As a result of centuries of rejection, many Roma communities today live in very difficult conditions, often on the fringe of society in the countries where they have settled, and their participation in public life is extremely limited. 14.     In the Czech Republic the Roma have national-minority status and, accordingly, enjoy the special rights associated therewith. The National Minorities Commission of the Government of the Czech Republic, a governmental consultative body without executive power, has responsibility for defending the interests of the national minorities, including the Roma. As to the number of Roma currently living in the Czech Republic, there is a discrepancy between the official, census-based, statistics and the estimated number. According to the latter, which is available on the website of the Minorities Commission of the Government of the Czech Republic, the Roma community now numbers between 150,000 and 300,000 people. 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 schools. 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 Czech Republic. These changes also affected the education of Roma pupils. In 1995 the Ministry of Education issued a directive concerning the provision of additional lessons for pupils who had completed their compulsory education in a special school. Since the 1996/97 school year, preparatory classes for children from disadvantaged social backgrounds have been opened in nursery, primary and special schools. In 1998 the Ministry of Education approved an alternative educational curriculum for children of Roma origin who had been placed in special schools. Roma teaching assistants were also assigned to primary and special schools to assist the teachers and facilitate communication with the families. By virtue of amendment no. 19/2000 to the Schools Act, which came into force on 18   February 2000, pupils who had completed their compulsory education in a special school were also eligible for admission to secondary schools, provided they satisfied the entrance requirements for their chosen course. 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 Ostrava. Further, although only 1.8% of non-Roma pupils were placed in special schools, in Ostrava the proportion of Roma pupils assigned to such schools was 50.3%. Accordingly, a Roma child in Ostrava was 27 times more likely to be placed in a special school than a non-Roma child. According to data from the European Monitoring Centre on 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 Organisation for Economic Cooperation and Development in 1999 and cited in the observations of the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education 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 Czech Republic was the only one to use special schools; the other countries concerned almost exclusively used ordinary schools for the education of such children. C.     The facts of the instant case 19.     Between 1996 and 1999 the applicants were placed in special schools in Ostrava, either directly or after a spell in an ordinary primary school. 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, and one of them 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 them exercised. 21.     On 29 June 1999 the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a 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 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 special schools. 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 Constitutional Court, the special schools concerned pointed out that all the applicants had been enrolled on the basis of a recommendation from an educational psychology centre and with the consent of their representatives. Furthermore, despite having been notified of the relevant decisions, none of the representatives had decided to appeal. According to the schools, the applicants’ representatives had been informed of the differences between the special-school curriculum and the primary-school curriculum. Regular meetings of teaching staff were held to assess pupils (with a view to their possible transfer to primary school). They added that some of the applicants (nos. 5 to 11 in the Annex) had been advised that there was a possibility of their being placed in primary school. 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 eighteen educational assistants of Roma origin in schools in Ostrava. 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, etc. 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 Constitutional Court dismissed the applicants’ appeal, partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it. It nevertheless invited the competent authorities to give careful and constructive consideration to the applicants’ proposals. (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 Constitutional Court noted that it was not its role to assess the overall social context and found that the applicants had not furnished concrete evidence in support of their allegations. It further noted that the applicants had had a right of appeal against the decisions to place them in special schools, but had not exercised it. As to the objection that insufficient information had been given about the consequences of placement in a special school, the Constitutional Court considered that the applicants’ representatives could have obtained this information by liaising with the schools and that there was nothing in the file to indicate that they had shown any interest in transferring to a primary school. The Constitutional Court therefore ruled that this part of the appeal was manifestly ill-founded. 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, a health centre, etc. 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 Czech Republic on 1 April 1999 pursuant to Article 25 § 1 of the Framework Convention for the Protection of National Minorities, it was noted that the psychological tests “are conceived for the majority population and do not take Romany specifics into consideration”. 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 [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 Czech Republic published on 21 March 2000, the European Commission against Racism and Intolerance (ECRI) noted that channelling of Roma children to special schools was reported to be often quasi-automatic. According to ECRI, the poor results obtained by these children in the pre-school aptitude tests could be explained by the fact that in the Czech Republic most Roma children did not attend kindergarten education. ECRI therefore considered that the practice of channelling Roma/Gypsy children into special schools for those with mental retardation should be fully examined, to ensure that any testing used was fair and that the true abilities of each child were properly evaluated. In its next report on the Czech Republic, which was published in June 2004, ECRI noted that the 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 educational guidance centres. 43 .     In his final report on the human rights situation of the Roma, Sinti and Travellers in Europe of 15 February 2006, the Commissioner for Human Rights observed: “Roma children are frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin.” 44 .     According to the observations submitted by the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education 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 Ostrava region ran contrary to effective assessment indicators that were well known by the mid 1990s, for example, those published in 1987 by the National Association for the Education of Young Children (USA). These indicators were now associated with the Global Alliance for the Education of Young Children, which included member organisations in Europe and, more particularly, the Czech Republic. Relevant indicators included: ethical principles to guide assessment practices; the use of assessment instruments for their intended purposes and in such a way as to meet professional quality criteria; assessments appropriate to the ages and other characteristics of the children being assessed; recognition of the developmental and educational significance of the subject matter of the assessment; the use of assessment evidence to understand and improve learning; the gathering of assessment evidence from realistic settings and in situations that reflected children’s actual performance; the use of multiple sources of evidence gathered over time for assessments; the existence of a link between screening and follow-up; limitations on the use of individually administered, norm-referenced tests; and adequate information for staff and families involved in the assessment process. Thus, the assessment of Roma children in the Ostrava region did not take into account the language and culture of the children, or their prior learning experiences, or their unfamiliarity with the demands of the testing situation. Single rather than multiple sources of evidence were used. Testing was done in one sitting, not over time. Evidence was not obtained in realistic or authentic settings where children could demonstrate their skills. Undue emphasis was placed on individually administered, standardised tests normed on other populations. According to studies cited in these observations (UNICEF Innocenti Insight (2005); Save the Children (2001), 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 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 Czech Republic published in March 2000, ECRI observed that Roma parents often favoured the channelling of Roma children to special schools, partly to avoid abuse from non-Roma children in ordinary schools and isolation of the child from other neighbourhood Roma children, and partly owing to a relatively low level of interest in education. 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 International Federation for Human Rights from its Czech affiliate, many schools in the Czech Republic are reluctant to accept Roma children. That reluctance is explained by the reaction of the parents of non-Roma children, which, in numerous cases, has been to remove their children from integrated schools because the parents fear that the level of the school will fall following the arrival of Roma children or, quite simply, because of prejudice against the Roma. It is in that context that Roma children undergo tests designed to ascertain their capacity to follow the ordinary curriculum, following which parents of Roma children are encouraged to place their children in special schools. The parents’ choice to place their children in special schools, where that is what they choose to do, is consistent with the school authorities’ desire not to admit so many Roma children that their arrival might induce the parents of non-Roma children to remove their own children from the school. 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 of 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 Czech Republic, which was published on 26 October 2005, that placement in a special school “makes it more difficult for Roma children to gain access to other levels of education, thus reducing their chances of integrating in the society. Although legislation no longer prevents children from advancing from ‘special’ to ordinary secondary schools, the level of education offered by ‘special’ schools generally does not make it possible to cope with the requirements of secondary schools, with the result that most drop out of the system”. 52.     According to the observations submitted by the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education 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 from the Commission of the European Communities to the Council and to the European Parliament on efficiency and equity in 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 Czech Republic, children in special schools were not expected to know the alphabet or numbers up to ten until the third or fourth year of school, while their counterparts in ordinary schools acquired that knowledge in the first year. III.     COUNCIL OF EUROPE SOURCES 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 Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696th meeting of the Ministers’ Deputies) 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; Consideri