CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 octobre 2020

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border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s10E06D14 { width:21.04%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sDA7181B3 { width:20.2%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCAEA084E { font-family:Arial; font-size:11pt; color:#1f497d }   FOURTH SECTION CASE OF ÁDÁM AND OTHERS v. ROMANIA (Applications nos. 81114/17 and 5 others)     JUDGMENT   Art 1 P12 • Prohibition of discrimination • Alleged discrimination in final high school exams of pupils belonging to national minorities studying in their mother tongue • Art 14 case-law standards applicable to Art 1 P12, including positive obligation to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different • Domestic policy designed to provide education in minority language while at the same time ensuring sufficient knowledge of official language • Additional exams the inevitable consequence of voluntary choice to study in a minority language • Content of curriculum and examination timetable not placing excessive burden on applicants • Margin of appreciation afforded to States • Applicants not placed in a different situation to Romanian peers that was sufficiently significant for the purposes of Art   1 P12   STRASBOURG 13 October 2020   FINAL   08/03/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ádám and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President ,   Faris Vehabović,   Iulia Antoanella Motoc,   Branko Lubarda,   Carlo Ranzoni,   Jolien Schukking,   Péter Paczolay, judges , and Andrea Tamietti, Section Registrar , Having regard to: the applications (see Appendix I below) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Romanian nationals (“the applicants”), on the various dates indicated in Appendix I below; the decision to give notice of the applications to the Romanian Government (“the Government”); the decision to give priority to the applications (Rule 41 of the Rules of Court); the parties’ observations; Having deliberated in private on 10 March, 12 May and 1 September 2020, Delivers the following judgment, which was adopted on that last-mentioned date: INTRODUCTION 1.     The case concerns alleged discrimination in the baccalaureate (school ‑ leaving) qualification of pupils belonging to national minorities studying at school in their native tongue. The applicants, who are ethnic Hungarians, complained under Article 1 of Protocol No. 12 to the Convention that they had had to sit two additional exams (oral and written in their mother tongue) during the same, rather short, period set for the final exams throughout the country. Moreover, the exams they had had to sit in Romanian language and literature had been very difficult for them. For this reason, ethnic Hungarian pupils had less time than Romanian pupils to prepare for their exams or to simply rest between them, and less chance of success in the baccalaureate. THE FACTS 2.     The applicants’ names, years of birth and place of residence are listed in Appendix I below. They were represented by Mr D.A. Karsai, a lawyer practising in Budapest. 3.     The Government were represented by their Agent, most recently Ms   O.F. Ezer, of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     The applicants live in an area inhabited primarily by ethnic Hungarians. They attended school in Romania and were taught in Hungarian, their mother tongue, and because of this, had to take two additional exams in the baccalaureate, to assess their proficiency in their mother tongue (see paragraph 12 below). They all failed their baccalaureate because they did not obtain the required grades to pass the exams in Romanian language and literature (Ms Ádám, Mr Petres, Mr Bakos, Mr   Forika and Mr Maxem) or Hungarian language and literature (Mr   Ambrus). They all retook the exams but failed to obtain the required grades (see Appendix I below). Some of the applicants contested the marks (Mr   Bakos, Mr Ambrus, Mr Forika and Mr Maxem), but after reassessment, their grades were still not sufficient to pass the exams. They all obtained the required grades in the other exams in the baccalaureate. 6.     Under the applicable rules, in order to pass the baccalaureate, candidates must obtain a minimum of 5.00 in each exam and the overall grade must be a minimum of 6.00 (see paragraph 12 below). The maximum grade is 10. 7 .     The Ministry of Education sets the timetable for the baccalaureate at the beginning of each school year (see paragraph 12 and Appendix II below). The written exams are organised over consecutive days: Romanian language (written), mother tongue (written) and the first exam in a curriculum subject. Pupils sitting the additional exams in their mother tongue have three consecutive days of written examination, whereas pupils not sitting them have a day of rest in between (see Appendix III below). 8 .     According to data provided by the Government, in the period 2013 to 2018 the success rate in the final exams was 58.1 to 73.9% for all pupils and 58.4 to 70% for pupils taught in Hungarian. During the same period, the success rate in the Romanian language and literature exams was 17 to 18% lower for Hungarian language students than for their Romanian peers. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW National Education Act (Law no. 1/2011) 9 .     The National Education Act (hereinafter “the NEA”), published in the Official Bulletin on 10   January 2011 and entered into force thirty days after publication, provides that the State “grants equal rights of access to all levels and forms of pre ‑ university and higher education, as well as lifelong learning, for all nationals of Romania, without any form of discrimination” (Article   2   §   8). 10 .     The NEA also provides as a defining principle “the recognition and the guarantee of rights of persons belonging to national minorities, the right to preserve, develop and express ethnic, cultural, linguistic and religious identity”, as well as the principle of “ensuring equal opportunities” (Article   3). 11 .     The following provisions regulate the right to education in minority languages: Article 45 “(1)     Persons belonging to national minorities shall have the right to be taught in their mother tongue, at all levels and in all forms of [primary and secondary] education, in accordance with the law. (2)     Any Romanian national and any national of a European Union State or Switzerland may register and be taught in all forms of education in the Romanian language, a minority language or a foreign language, irrespective of their mother tongue or of the language they were taught in previously.” Article 46 “(1)     In [primary and secondary] education, where teaching is done in a minority language, all subjects shall be studied in that language, with the exception of the subject of Romanian language and literature. (2)     The subject of Romanian language and literature shall be taught, throughout [primary and secondary] education, in accordance with the school curriculum and from textbooks specifically designed for the relevant national minority. (3)     By way of exception, in schools where teaching is done in a minority language, the subject of Romanian language and literature may be taught from textbooks used in schools where teaching is done in the Romanian language, at the request of parents, the organisation representing the national minority elected into Parliament or, if the respective national minority is not represented in Parliament, at the request of the parliamentary group representing national minorities. (4)     Exams in the subject of Romanian language and literature shall be based on a special school curriculum. (5)     In [primary and secondary education], evaluation assessments and exams for pupils enrolled in schools where teaching is done in a minority language shall be based on the requirements of the national curriculum. ... (12)     In [primary and secondary] education, pupils may sit the entrance and final exams in the language in which they were taught the relevant subjects, in accordance with the law.” 12 .     The content and organisation of the baccalaureate are regulated as follows: Article 77 “(1)     Secondary school graduates shall receive a diploma and record of [their] grades, as part of their educational portfolio, attesting to the fact that [they] finished their secondary school studies and may ... take the baccalaureate exam. (2)     Pupils who passed their [final school year] shall sit the national baccalaureate exam. (3)     Secondary school graduates who sit and pass the national baccalaureate exam shall receive a baccalaureate diploma, which gives them access to university education, in accordance with the law. (4)     The national baccalaureate exam consists of the following exams: - Exam A: an assessment of oral communication skills in the Romanian language; - Exam B: an assessment of oral communication skills in the mother tongue, for pupils whose high school education was in a minority language; - Exam C: an assessment of oral communication skills in two foreign languages studied at high school ...; - Exam D: a digital [computer] skills assessment ...; - Exam E: a written assessment of competences obtained throughout high school, as follows: (a)     a written exam in Romanian language and literature – a standard exam for pupils in all branches, profiles and specialisations; (b)     a written exam in the [maternal] language and literature – a standard exam for pupils in all branches, profiles and specialisations whose high school education was in a minority language; (c)     written exams in two subjects ... (5)     The content of the exam curriculum is set by the Ministry of Education ... and publicly announced to pupils at the beginning of the first year of secondary school, in accordance with the law. The timetable, methodology and organisation of the baccalaureate exam are set by the Ministry of Education ... and are publicly announced for each year group at the beginning of the last year of secondary school. ...” Article 78 “1.     [Secondary] school graduates shall be considered to have passed the national baccalaureate exam if all the following conditions are met: (a)     [they] sat exams A, B, C and D provided for by Article 77 § 4; (b)     [they] sat written exams E provided for by Article 77 § 4 and obtained at least grade 5 in each; (c)     [they] obtained at least 6 as the average grade, calculated to two decimal points, in exams E. 2.     School graduates who pass the baccalaureate exam shall receive a baccalaureate diploma. 3.     School graduates who pass exams A, B, C and D provided for by Article   77   §   4 shall receive certificates attesting to their level of language and digital skills respectively. These certificates are issued irrespective of whether they have passed exams E provided for by Article 77 § 4. 4.     If a pupil does not pass the national baccalaureate exam, the grades obtained in assessments A, B, C and D ... and the results obtained in written exams E, if grade 5 or higher, shall be recognised in the next [exam] session, upon request. 5.     Two national baccalaureate exam sessions shall be organised per school year. ... 6.     Pupils may sit the baccalaureate exam twice free of charge. Any subsequent resits shall be subject to the payment of a fee set by the Ministry of Education ... 7.     Assessments A, B, C and D provided for by Article 77 § 4 shall ... take place in each school during the school year, in the second semester... 8.     Written exams E in the national baccalaureate exam, provided for by Article   77 §   4, shall take place at the end of the school year, in the presence of a committee set up by the school inspectorate.” Discrimination under domestic law 13 .     Discrimination is prohibited by Article 16 of the Constitution, and is defined in Article 2 § 1 of the Anti-discrimination Ordinance (Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination). In addition, Article 11 of the Ordinance provides as follows: “(1)     Under the ordinance herein, denying a person or group of persons access to the State-owned or private education system of any kind, degree or level, on account of their belonging to a race, nationality, ethnic group, religion, social category or disadvantaged group, on account of their beliefs, age, gender or sexual orientation, shall constitute a contravention. (2)     The provisions of the paragraph above shall apply at all stages and levels of education, including admission or enrolment in education institutions and the assessment and examination of students’ knowledge. (3)     Under the ordinance herein, requiring a declaration to prove that a person or group belongs to an ethnic group as a condition of access to education in their mother tongue shall constitute a contravention. The exception to this rule is the situation where candidates apply in the secondary and higher education system for places allocated specifically for a certain minority, in which case they shall prove that they belong to this minority by means of a document issued by a legally established organisation [representing] the relevant minority. (4)     The provisions of paragraphs (1), (2) and (3) shall not be interpreted as a restriction of the right of an education institution to refuse the application of a person whose knowledge and/or prior results do not meet the required admission standards of that institution, as long as the refusal is not determined by [his or her] belonging to a race, nationality, ethnic group, religion, social category or disadvantaged group, on account of his or her beliefs, age, gender or sexual orientation. ... (6)     Under the ordinance herein, any restrictions based on belonging to a race, nationality, ethnic group, religion, social category or disadvantaged group in the establishment and accreditation of education institutions set up in accordance with the legal framework in force shall constitute a contravention.” 14 .     On 3 July 2008 the Constitutional Court adopted four decisions (nos.   818, 819, 820, and 821) declaring Articles 1, 2 and 27 § 1 of the Anti-discrimination Ordinance unconstitutional in so far as they could be interpreted as granting the domestic courts the power to repeal laws which they found to be discriminatory. The decisions were adopted following an examination of constitutional complaints lodged by the Ministry of Justice in four sets of proceedings in which the domestic courts had declared various legal provisions concerning salary adjustments discriminatory. The decisions were published in the Official Gazette on 16   July 2008. In all four decisions, the Constitutional Court held: “Interpreting the provisions of the [Anti-discrimination Ordinance] so as to allow the courts to have power to repeal legal provisions and replace them with new provisions or existing provisions from other laws is clearly unconstitutional, as it breaches the principle of the separation of powers enshrined in Article 1 § 4 of the Constitution, as well as Article 61 § 1, which states that Parliament is the only legislative body in the country. ... Accordingly, the Constitutional Court ... rules that the provisions of Articles 1, 2 §   3, and 27 § 1 of Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination are unconstitutional, in so far as they can be interpreted as allowing the courts to revoke or refuse to apply [laws] on the grounds that they are discriminatory and replace them with provisions created on the basis of case-law or provisions of other laws not considered by the legislature when adopting the provisions [considered discriminatory].” Administrative Proceedings Act (Law no. 554/2004) 15 .     The relevant parts of the Administrative Proceedings Act read as follows: Article 1: Who can apply to court “(1)     Anyone who considers that their rights or legitimate interests were breached by a public authority by an administrative act or failure to respond to a request within the statutory time-limit, may apply to court for annulment of that act, acknowledgement of the right or legitimate interest at stake and compensation for the damage sustained. The legitimate interest may be either private or public.” Article 2: Meaning of terms “1.     In accordance with the present law, the following words and phrases have the meaning set out below: ... (c)     administrative act: unilateral act, either individual or normative, issued by a public authority, in the exercise of its public power, with a view to organising the application of a law or concrete application of a law, and which gives rise to, modifies or extinguishes legal relations; ...” Article 8: Subject of the legal action “1.     Anyone who considers that their rights or legitimate interests were breached by a unilateral administrative act, and who is unsatisfied with the response received to their preliminary request [ plângere prealabilă ] or who has received no response within the time-limit specified in Article 2 § 1 (h), may lodge an action with the court, seeking partial or total annulment of that act, compensation for the damage sustained, and, if applicable, non-pecuniary damages ...” Order no. 4799 of 31 August 2010 of the Ministry of Education concerning the organisation and administration of the baccalaureate 16.     Ministerial Order no. 4799 regulates the baccalaureate exam procedure. The relevant provisions read as follows: Article 43 “1.     Subjects for the written exams shall be set by the National Assessment and Examination Centre in accordance with the following criteria: (a)     [they] shall comply with the school curricula and the baccalaureate programme approved and published by the [Ministry of Education] ...” Article 47 “3.     The National Assessment and Examination Centre shall ensure translation of the subjects into the languages of national minorities.” CONSTITUTIONAL COURT DECISIONS Decision no. 2/2011 17 .     In decision no. 2/2011, issued on 23 February 2011, the Constitutional Court examined a challenge to the constitutionality of the NEA made by a group of parliamentarians. Several provisions were called into question, including Article 46 § 2 providing for the right to education of national minorities (see paragraph 11 above). The Constitutional Court dismissed all objections. The relevant parts of the Constitutional Court’s decision read as follows: “... the Court observes that Article 6 of the Constitution guarantees the right to identity of people belonging to national minorities; the constitutional provision expressly provides that ‘the State recognises and guarantees the right of persons belonging to national minorities to preserve, develop, and express their ethnic, cultural, linguistic and religious identity’. The method of implementation of this right is specified in paragraph 2 of the same constitutional provision, which requires that adequate measures be taken to this end. The State’s positive obligation is inferred from the phrase: ‘protection measures taken by the State’ which must respect ‘the principles of equality and non-discrimination in relation to other Romanian nationals’. ... Numerous international instruments provide for the right to education ... of persons belonging to national minorities ... Consequently, positive measures may be necessary to protect the identity of a minority and the rights of members of that group to enjoy and develop their own culture and language, and practice their religion ... These international instruments refer to the specific situation of persons belonging to national minorities, which requires the State to treat them differently ... The [NEA] has implemented and developed these obligations so as to allow and guarantee the continuous development of the cultural identity of persons belonging to national minorities ... The legislature has chosen to make specific provisions concerning [primary and secondary] education for persons belonging to national minorities. ... The fact that the law provides for a special school curriculum for learning the Romanian language designed for members of a national minority signifies that the specific situation of these persons has been taken into account, notably the fact that they have a different mother tongue than Romanian. In other words, the different situation in which members of a national minority find themselves evidently calls for different treatment by law, in order to ensure effective equality and access to quality education for all. Consequently, the legislature must take this fact into account and adapt the requirements to learn Romanian language and literature to the specific situation of persons belonging to national minorities. Last but not least, the authorities have an obligation to ensure that a sufficient number of hours are provided for the proper study of Romanian language and literature.” Decision no. 670/2015 18 .     Z.I.A., the father of an ethnic Hungarian student, complained that Ministerial Order no. 5610/2012 setting the timetable for the baccalaureate exams discriminated against pupils belonging to a national minority who had to sit two additional exams in the same time period as their Romanian peers. 19 .     In decision no. 148/2014, issued on 5 March 2014, the National Council for Combatting Discrimination (“the NCCD”) found that that situation did not constitute discrimination. It accepted that pupils taught in their mother tongue and not Romanian had to make additional efforts during their final exams. It considered, however, that these efforts were rewarded by the fact that they obtained a certificate of language proficiency which was not awarded to Romanian pupils. Moreover, it reiterated that being taught in a language other than Romanian was a choice and not a right for students. This choice involved additional efforts on the part of the State and the students themselves, and both parties had to accept this choice. 20 .     In the operative part of its decision, the NCCD recommended that the authorities: “... set a timetable [for the baccalaureate] taking into account the days necessary for rest, set a timetable allowing an equal amount of days between the [exams] in the baccalaureate, for instance by scheduling the [exams] in the mother tongue – oral and written – at the end of the baccalaureate exam period, in so far as possible.” 21.     Z.I.A. lodged an action with the Bucharest County Court complaining of discrimination against ethnic Hungarian pupils and seeking annulment of the decision issued by the NCCD on 5 March 2014. In his action, he requested that the matter of discrimination be referred to the Constitutional Court. 22.     Following a referral by the Bucharest Court of Appeal, the Constitutional Court examined the compatibility with the non ‑ discrimination clause of the NEA. In his complaint, Z.I.A. argued that during the same period of time allocated to all students for the final exams, ethnic Hungarians had to sit more exams than their Romanian peers. This, in his view, created a difference in treatment amounting to discrimination. He also suggested that the solution for eliminating discrimination would be to have pupils sit exams in only one of the two languages, namely their mother tongue. 23 .     In decision no. 670/2015, issued on 20 October 2015, the Constitutional Court dismissed the complaint. It reiterated that the Constitution guaranteed the right of the persons belonging to a national minority to preserve their collective identity through the use of their mother tongue. This right however, was related to the obligation to integrate into society in general, by learning the official language. Consequently, the Constitutional Court dismissed the argument that there was no objective and reasonable justification for requiring students belonging to ethnic minorities to sit the Romanian language exams. 24 .     The Constitutional Court further held that the fact that students belonging to ethnic minorities had to sit more exams in the same time period was not a question of constitutionality. It reiterated that it was for the legislature to set the timetable for the final exams. 25.     Consequently, Z.I.A.’s initial action was dismissed by the Bucharest Court of Appeal on 24 November 2014. In a final decision of 7 March 2017 the High Court of Cassation and Justice declared his appeal on points of law null and void, on the grounds that he had failed to state the reasons for his appeal. COUNCIL OF EUROPE MATERIALS Framework Convention for the Protection of National Minorities 26 .     The Framework Convention for the Protection of National Minorities, adopted by the Council of Europe in 1995, entered into force in respect of the respondent State on 1 February 1998. The relevant parts read as follows: “The member States of the Council of Europe and the other States, signatories to the present framework Convention, ... Considering that a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity; ...” Article 5 “1.     The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. 2.     Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation. ...” Article 10 “1.     The Parties undertake to recognise that every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing. ...” Article 12 “1.     The Parties shall, where appropriate, take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority. 2.     In this context the Parties shall inter alia provide adequate opportunities for teacher training and access to textbooks, and facilitate contacts among students and teachers of different communities. 3.     The Parties undertake to promote equal opportunities for access to education at all levels for persons belonging to national minorities. ...” Article 14 “1.     The Parties undertake to recognise that every person belonging to a national minority has the right to learn his or her minority language. 2.     In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language. 3.     Paragraph 2 of this article shall be implemented without prejudice to the learning of the official language or the teaching in this language.” European Charter for Regional or Minority Languages 27 .     The European Charter for Regional or Minority Languages, adopted by the Council of Europe in 1992, entered into force in respect of the respondent State on 1 May 2008. The relevant provisions read as follows: “Preamble The member States of the Council of Europe signatory hereto, ... Considering that the right to use a regional or minority language in private and public life is an inalienable right conforming to the principles embodied in the United Nations International Covenant on Civil and Political Rights, and according to the spirit of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms; ... Stressing the value of interculturalism and multilingualism and considering that the protection and encouragement of regional or minority languages should not be to the detriment of the official languages and the need to learn them; Realising that the protection and promotion of regional or minority languages in the different countries and regions of Europe represent an important contribution to the building of a Europe based on the principles of democracy and cultural diversity within the framework of national sovereignty and territorial integrity; Taking into consideration the specific conditions and historical traditions in the different regions of the European States, ...” Article 1 – Definitions “For the purposes of this Charter: a     ’regional or minority languages’ means languages that are: i     traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and ii     different from the official language(s) of that State; it does not include either dialects of the official language(s) of the State or the languages of migrants;” THE LAW     PRELIMINARY REMARKS 28 .     The Court notes from the outset that the applicants complained about the manner in which the baccalaureate was organised. The necessity and benefits of learning Romanian was not called into question by them (see paragraph   71 below). It was likewise reaffirmed by the Constitutional Court (see paragraph 23 above). In this connection, the Court also stresses that the Council of Europe instruments relevant to the protection of national minorities, notably the Framework Convention for the Protection of National Minorities (see paragraph 26 above) and the European Charter for Regional or Minority Languages (see paragraph 27 above), expressly recognise that the protection and encouragement of minority languages should not be to the detriment of official languages and the need to learn them. Consequently, the importance for national minorities to study the official language of the State was not called into question in the present applications. JOINDER OF THE APPLICATIONS 29.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court). ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL N o . 12 TO THE CONVENTION 30 .     The applicants complained that they had been discriminated against because of the manner in which the baccalaureate was organised, as in the same short time period they had had to take two additional exams in the baccalaureate compared to their Romanian peers. Moreover, the exams they had had to sit in Romanian language and literature had been very difficult for them. This situation imposed a more significant burden on Hungarian pupils than on their Romanian peers. The applicants claim that as a consequence, they had failed their baccalaureate. They relied on Article 1 of Protocol No.   12 to the Convention, which reads as follows: “1.     The enjoyment of any right set forth by law 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. 2.     No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” Admissibility The Court’s jurisdiction ratione materiae 31.     At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction ratione materiae , the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no.   76639/11, §   93, 25 September 2018). No such particular reason exists in the present case and the issue of the applicability of Article 1 of Protocol No. 12 falls to be examined at the admissibility stage. 32.     The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina , no. 30100/18, § 45, 29 October 2019). 33.     It is important to note that Article 1 of Protocol No. 12 extends the scope of protection not only to “any right set forth by law”, as the text of paragraph   1 might suggest, but beyond that. This follows in particular from paragraph   2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v.   Croatia , no. 7798/08, § 104, 9 December 2010). According to the Explanatory Report on Article 1 of Protocol No. 12, the scope of protection of that Article concerns four categories of cases, in particular where a person is discriminated against: “i.     in the enjoyment of any right specifically granted to an individual under national law; ii.     in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; iii.     by a public authority in the exercise of discretionary power (for example, granting certain subsidies); iv.     by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).” The Explanatory Report further clarifies that: “... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.” 34.     Therefore, in order to determine whether Article 1 of Protocol No.   12 is applicable, the Court must establish whether the applicants’ complaints fall within one of the four categories mentioned in the Explanatory Report (see Savez crkava “Riječ života” and Others , cited above, § 105). 35.     In this connection, the Court notes that all pupils are granted by law the option to be taught in their mother tongue and that the authorities are expected to take measures to facilitate it (see paragraph 11 above). Consequently, the applicants may claim that they had been discriminated in the enjoyment of a right specifically granted to an individual under national law. 36.     It follows that Article 1 of Protocol No. 12 applies to the facts of the present case. Non-exhaustion of domestic remedies (a)    The parties’ submissions (i)       The Government 37 .     The Government pointed out that the applicants had not brought their grievances to the attention of the domestic authorities. They could have lodged an administrative complaint against the ministerial orders setting the timetable for the baccalaureate exams. A complaint under the Administrative Proceedings Act (see paragraph 15 above), would have allowed the domestic courts to examine the timetable and, if found in violation of the claimants’ fundamental rights, annul the ministerial order in question. 38 .     Moreover, the applicants could have also lodged a complaint with the NCCD similar to that lodged by Z.I.A. (see paragraphs 18-20 above). (ii)     The applicants 39.     The applicants pointed out that the Government had not produced any evidence to show that the remedies suggested would be able to provide them with redress. They reiterated that the NCCD had found that the situation complained of did not constitute discrimination, thus proving its ineffectiveness in the matter (see paragraph 20 above). 40.     They further reiterated that their complaint concerned not only the time to rest between exams, but also the difficulty of the exams in Romanian language and literature, which had drastically reduced their chances of applying for university. 41.     They argued that the only way Hungarian students could have similar rest and preparation time as Romanian pupils was by setting a longer exam period and possibly altering the sequence of the exams. However, as the structure and sequence of the final exams were laid down in the NEA, they had no domestic remedy at their disposal to complain about it. 42 .     Lastly, the applicants argued that the ministerial orders setting the exam timetable were published about ten months before the actual exams. In their view, this was insufficient time to obtain a final ruling in a complaint lodged under the Administrative Proceedings Act (see paragraph 15 above). (b)    The Court’s assessment (i)       General principles 43.     On the requirement to exhaust domestic remedies, the Court refers to the well-established principles of its case-law (as reiterated notably in Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83-89, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], nos.   17153/11 and 29 others, §§ 69-77, 25 March 2014). 44.     In particular, the Court reiterates that the obligation to exhaust domestic remedies requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Gherghina , cited above, § 85, with further references). 45 .     Nevertheless, there is no obligation to have recourse to remedies which are inadequate or ineffective. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to pursue it (ibid., § 86, with further references). 46.     The Court has, however, also fr