CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 février 2025

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SLOVAKIA (Application no. 29359/22)   JUDGMENT   Art 14 (+ Art 2 P1) • Discrimination • Right to education • Discriminatory treatment of Roma pupil on account of placement in special class for children with mild intellectual disabilities • Danger that diagnostic tests, used to determine the applicant’s intellectual capacity, were culturally biased • Enrolment in special classes de facto permanent with no systematic retesting to monitor any developments which might justify a pupil’s transfer back into mainstream education • In case-circumstances, permanent nature of the applicant’s enrolment in a special class confirmed in practice • Applicant’s schooling in special class not attended by adequate safeguards to ensure consideration of special needs of Roma pupils as members of a disadvantaged class • Placement in such a class, with a more basic curriculum than mainstream classes, resulted in an education not offering guarantees stemming from the State’s positive obligation to undo a history of racial segregation in special education • Domestic legislation as applied at material time had a disproportionately prejudicial effect on the Roma community • State’s failure to prove, in a prima face case of discrimination, necessary guarantees provided to avoid misdiagnosis and inappropriate placement of Roma pupils   Prepared by the Registry. Does not bind the Court.   STRASBOURG 27 February 2025   FINAL   27/05/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Salay v. Slovakia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ivana Jelić , President ,   Alena Poláčková,   Raffaele Sabato,   Frédéric Krenc,   Alain Chablais,   Artūrs Kučs,   Anna Adamska-Gallant , judges , and Ilse Freiwirth, Section Registrar, Having regard to: the application (no. 29359/22) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Adrián Salay (“the applicant”), on 4 June 2022; the decision to give notice to the Government of the Slovak Republic (“the Government”) of the complaint characterised under Article 14 of the Convention, in conjunction with Article 2 of Protocol No. 1, concerning the applicant’s enrolment and schooling in a   preparatory class and in special classes, and to declare the remainder of the application inadmissible; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by (i) the Public Defender of Rights of the Slovak Republic, (ii) the European Network of Equality Bodies and the Slovak National Centre for Human Rights, jointly and (iii) Validity Foundation, who were granted leave to intervene by the President of the Section; Having deliberated in private on 4 February 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the allegedly discriminatory enrolment and schooling of the applicant, who was born in 1998 and is of Roma origin, first in a preparatory class of a primary school for children who were not expected to be able to complete the mainstream curriculum, and then in special classes at that school which were for children with an intellectual disability. It raises an issue under Article 14 of the Convention, in conjunction with Article 2 of Protocol No. 1. THE FACTS 2.     The applicant was born in 1998 and lives in Plavecký Štvrtok. He was represented by the European Roma Rights Centre (ERRC), a   non ‑ governmental organisation based in Brussels. 3.     The Government were represented by their Agent, Ms M. Bálintová. 4.     The facts of the case may be summarised as follows. APPLICANT’S SCHOOLING 5.     The applicant grew up in a Roma community in Plavecký Štvrtok, consisting of several hundreds (see Salay and Zemanová v. Slovakia [Committee], no. 43225/19, § 5, 28   September 2021). 6.     Prior to his enrolment in the first year of primary school ( základná škola ), in August 2004 the applicant’s school maturity was tested ( vyšetrenie školskej zrelosti ) at the Educational and Psychological Advice and Prevention Centre in Malacky (“the Centre”). 7 .     In view of his results, the applicant was not enrolled in mainstream Year One for the academic year 2004/2005, but in what is called Year Zero ( nultý   ročník ). Under section   6(2) of the School Act (Law no. 29/1984 Coll., as applicable at the material time), Year Zero was a form of upbringing and education and constituted an integral part of primary school. It was intended for children who were aged six on 1 September of a given year but who did not have the requisite level of academic maturity, who were from a   disadvantaged background and who, in view of the social or language ‑ related aspects of that background, could not be expected to master the curriculum of the mainstream Year One in one academic year. 8.     From Year Zero onwards the applicant attended Plavecký Štvrtok Primary School (“PSPS”), which had mainstream classes as well as special classes ( špeciálna trieda under section 32a(3) of the 1984 School Act, and subsequently section 94(1)(b) of the 2008 School Act (Law no. 245/2008 Coll., as amended)). Special classes were for pupils with special educational needs, the same type of disability or the same type of intellectual gift, and had a curriculum adapted to such needs. 9.     As would also be established in the ensuing judicial proceedings, in principle, only Roma pupils attended PSPS. Nevertheless, there were also some non ‑ Roma children in the applicant’s class in Year Zero. 10 .     Thereafter, in the academic year 2005/2006 the applicant started Year One in a mainstream class. According to him, this was a   mixed class of Roma and non-Roma pupils. 11 .     In response to learning difficulties which the applicant experienced in the course of the year, the school requested that he be retested at the Centre. He was retested on 16   January 2006 and the report which was produced found that his intellectual capacity was similar to that of a person with a mild intellectual disability ( mentálna retardácia ľahkého stupňa ) and recommended that he be transferred to a special class. Among other things, the report noted that “[the applicant] ha[d] not always understood verbal instructions in performance subtests”. As would later be established in the judicial proceedings, two tools were used in that testing. The first tool was an “RR screening test”, which was an   instrument developed in 2004 as part of PHARE project SR0103.01 to   support the Roma minority in education, with the aim of distinguishing between intellectual disability and socio-economic disadvantage. The aim of the test is to rule out an intellectual disability, and the result of the test in the applicant’s case was that such a disability could not be ruled out. The second tool used was a “WISC III test”, which was a   general test used across the population with no particular regard for any specificities of Roma people. In the applicant’s case, the result of the test indicated a mild intellectual disability. 12 .     The recommendation in that report was subsequently confirmed when the applicant was retested in April 2006 at the special education advisory service at the special primary school in Malacky. It was also noted that the applicant had learning difficulties in Slovak and mathematics, as well as behavioural issues. Among other things, the report noted that the applicant’s “speech [was] ... influenced by dialect”. 13.     On 27 June 2006, by means of a pre-printed form, the applicant’s mother requested his transfer to a special class at PSPS. 14 .     From Year Two (academic year 2006/2007) until the end of his schooling at PSPS, the applicant attended special classes, and at that time all the pupils in those classes at PSPS were Roma. 15 .     In 2009 the applicant was examined at the Centre. In the ensuing court proceedings, the psychologist who had tested the applicant explained that she had examined him twice. The first examination took place on 10 June 2009 and involved a non-verbal test for children aged five to eleven. It resulted in a finding that the applicant’s development was delayed and his skills were similar to those of a person with a mild disability, below the population norm. 16 .     The second of those examinations took place on 12 November 2009, in the presence of the applicant’s mother. The report produced specifies that the examination followed a request made by PSPS owing to what was described as the applicant’s inadequate reactions at school. The testing established that the development of the applicant’s personality was delayed, that he was extremely energetic and lively, and that his actions were hasty and inconsiderate. In view of the school’s concerns about the applicant’s behaviour, a   further examination by a psychiatrist was recommended. As the psychologist who carried out the testing later explained, the test used was a   standard test focusing on non-verbal elements. 17 .     On 20 January 2011 the applicant (accompanied by his father) was examined at the Centre again, following a request made by PSPS owing to learning difficulties which had been observed in relation to the applicant’s reading and writing. Among other findings, the applicant was found to have a general intellectual capacity similar to that of a person with a mild intellectual disability, and displayed restlessness, impatience and a lively nature. The psychologist who examined him would later specify that the testing had followed a methodology for children from socially disadvantaged backgrounds which had been recommended in 2005 by the Research Institute of Child Psychology and Pathopsychology (“the Institute”), an entity operating under the auspices of the Ministry of Education. 18 .     On 23 June 2011, at the request of his mother, the applicant was tested at the Institute. The report produced concluded that his development was within the normal range (below average or borderline), and he had an uneven performance profile. There was a suspicion that he had a learning disorder relating to his development, but a more in-depth special education examination would be necessary to establish this with certainty. In terms of recommendations, the report noted that in three years’ time the applicant’s attendance at school would no longer be mandatory (at the time of the testing, he was in Year Six) and that it was right that he should be given the opportunity to complete lower secondary education by then. The report said that he should not be transferred to a lower year of a mainstream class at primary school which corresponded to his level of acquired knowledge if this would result in his dropping out of primary school before completing Year Nine. The applicant could be enrolled in Year Seven of a mainstream class, with an individual study programme to make up for any deficits in the knowledge he had so far acquired. However, from a psychological perspective, it was most appropriate for the applicant to continue his education in a special class with an extended curriculum, and this would enable him to complete lower secondary education. 19.     On 14 September 2011, relying on the results of the above test, the applicant’s parents requested that he be transferred to a mainstream class at PSPS, with an individual study plan. 20 .     On 18 October 2011 the applicant (accompanied by his father) underwent two tests at the Centre. The first test was a special education test in which the applicant’s learning development in grammar was assessed as being mediocre, and his learning development in mathematics was found to be adequate in relation to the curriculum. According to the Government, this test was recommended by the Institute and adapted to children from disadvantaged social backgrounds. The second test was a psychological test, which concluded that the applicant’s intellectual capacity was similar to that of a person with an   intellectual disability. Indications of aggressive behaviour on his part were to be examined further by a child psychiatrist. The psychologist who carried out the test later specified that the test used was “standardised, culturally neutral and commonly used in psychological practice”, adding that it was non-verbal and pictographic. Both tests found that the applicant’s enrolment in Year Seven of a   special class, where he followed a “type-A” curriculum, was correct. 21.     The applicant completed his studies at PSPS in the academic year 2012/13, and from the academic year 2013/14 he proceeded to study at a   three-year training college. Following issues with discipline and numerous unexcused absences that year, he did not start the academic year 2014/15, and consequently his studies at that college were terminated. ANTI-DISCRIMINATION ACTION 22 .     On 14 April 2014 the applicant lodged an anti-discrimination action with the Malacky District Court. The action was against PSPS and the State (through the Ministry of Education), and essentially sought judicial recognition of a violation of his rights. In his action, the applicant emphasised the general situation of Roma in Slovakia and beyond. In the area of education, an ever ‑ growing number of Roma pupils were in special schools and special classes designed for children with intellectual or social disabilities. In his submission, at the relevant time, some 86% of all pupils in special classes were Roma and more than 20% of Roma children in Slovakia received special education, in circumstances where the overall national average was 4.1% of children in special schools and 2.2% in special classes. This had to be seen in the context of the fact that Roma made up some 6-8% of the country’s overall population. In that regard, the applicant relied, inter alia , on the concluding observations in respect of Slovakia of various United Nations (UN) bodies such as the Committee on the Elimination of Racial Discrimination (2004, 2010 and 2013), the Committee on the Rights of the Child (2000 and 2007), the Committee on Economic, Social and Cultural Rights (2002 and 2012) and the Human Rights Committee (2003 and 2011), as well as on communications by the European Commission. As to his individual case, the applicant contended that his enrolment in Year Zero and in special classes had been arbitrary and had, in practice, prejudiced his entire academic trajectory, as demonstrated by the fact that it had not been possible to transfer him to a mainstream class in the academic year 2011/12, even though he had been retested in June 2011 and the relevant results had indicated that this was a valid option. The results of his tests had been incoherent and had relied on learning difficulties that had not been individually specified. Moreover, the tests had been culturally, socially and linguistically biased. As regards linguistic bias, the applicant specified that the tests had been carried out in Slovak, whereas at home he spoke Romani and a dialect of Western Slovakia. His parents had not given informed consent for his enrolment in special classes, and he had not been retested regularly. The physical equipment used in such classes and the curriculum followed was inferior to that used in mainstream classes. In support of his claims, the applicant also relied on section 11(2) of the Anti-Discrimination Act (Law no. 365/2004 Coll., as amended), which provided that the defendant had to show that the principle of equal treatment had not been violated in all instances where the claimant had established facts giving rise to a justified assumption that such a violation had taken place. In sum, the applicant alleged both direct and indirect discrimination on the grounds of his Roma origin with regard to, inter alia , his right to education. 23.     The District Court took evidence from the parties and heard the experts involved in the tests carried out on the applicant. It also considered submissions from the ERRC, who had been admitted to the proceedings as a   third party appearing in support of the applicant under Article 95 of the Code of Civil Contentious Procedure. 24 .     On 17 May 2018 the District Court dismissed the action. Noting that “the problems with education of the Roma minority in Slovakia were enormous”, the court recognised that the State “could and should do much more [in that regard]”. Nevertheless, the case at hand concerned the applicant’s individual situation, which had been properly and repeatedly examined by the competent authorities; his parents had been involved and his enrolment had corresponded to the results of that examination. From that perspective, he was no victim of the existing educational system, but had instead failed to make use of the opportunities provided by it. In his argument, the applicant had placed significant weight on the linguistic aspect of his understanding of the testing. Nevertheless, his claim that he spoke Romani at home did not correspond to the established reality. In so far as the language spoken at his home was a dialect of Western Slovakia, this had not significantly limited his ability to participate effectively in the tests. As only Roma pupils attended PSPS, the fact that only Roma children attended the special classes there was not indicative of any segregation. The testing for enrolment in such classes was the same, irrespective of the origin of the children being tested. Moreover, the applicant’s personality was complicated and he had behavioural problems. In sum, the applicant had failed to show that he had been treated differently on the grounds of his origin. 25 .     The applicant and the ERRC appealed, arguing that the reasoning behind the first-instance judgment was inadequate and lacked any position on essential aspects of the case. The first-instance court had failed to   take into account the situation of the Roma minority in the area of education, to   consider the distribution of the burden of proof, and to inquire into matters such as the nature of the consent given by the applicant’s parents and the cultural and social neutrality of the tools used in the testing carried out on him. 26 .     On 25 November 2020 the Bratislava Regional Court dismissed the appeals, concurring with the District Court’s conclusions, endorsing its reasoning and adding the following observations. The applicant had attended PSPS with the consent of his parents. It was the school in his catchment area and the population in this area was largely Roma. His behavioural problems alone would have prevented his enrolment in mainstream classes. The applicant had dropped out of secondary school when he had passed the mandatory school attendance age, as he had not been interested in pursuing further education. Even if the results of the testing carried out when he had been thirteen (see paragraph 18 above) could be accepted as authoritative, they had pertained only to the situation at that time and had not been directly relevant to the situation when he had been enrolled previously. The applicant had failed to show that he had been treated differently from non-Roma pupils in a similar situation or, in other words, that he had been enrolled in Year   Zero or special classes on account of his Roma origin. There was accordingly no question of any shift in the burden of proof in relation to whether any difference in treatment had been justified. CONSTITUTIONAL COMPLAINT 27 .     On 12 April 2021 the applicant lodged a complaint under Article 127 of the Constitution, further developing his above arguments and specifying, inter alia , that the scope of the curriculum prescribed for the special classes which he had attended was such that it had prevented him from being eligible for secondary education concluding with a baccalaureate ( maturita ). 28 .     On 12 November 2021 the Constitutional Court declared the complaint inadmissible, essentially for being manifestly ill-founded. The ordinary courts had properly established the facts and had drawn adequate legal conclusions. The testing and enrolment had been in full compliance with the applicable law, the relevant criterion being the applicant’s capacity; his origin had been of no consequence. The decision was served on the applicant on 28 January 2022 and no appeal lay against it. OTHER RELEVANT FACTS 29 .     On 22 December 2023 the European Commission brought an action against Slovakia before the Court of Justice of the European Union (“CJEU”), alleging an infringement of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (“the Anti-Racism Directive”). 30.     In support of its action, the Commission alleged systematic and persistent improper administrative practice on the part of the authorities of the Slovak Republic in relation to indirect discrimination against the Roma community in the field of education. In particular, by placing too many Roma children in special schools or special classes for children with intellectual or other disabilities, the Slovak Republic had systematically and persistently infringed paragraph 1 of Article 2 of that Directive, read in conjunction with paragraph 2(b) (for these provisions, see paragraph 61 below). It also maintained that the Slovak Republic had systematically and persistently infringed these provisions by segregating Roma children in separate classes in mainstream schools or in separate schools. 31.     The action has been registered under file no. C-799/23 and is ongoing. FURTHER FACTS REFERRED TO BY THE GOVERNMENT 32.     The Government referred to a series of records from the year 2010/11 indicating that the applicant had been involved in several discipline-related incidents at school, such as damaging school property, verbally abusing teachers and assaulting classmates. According to the available records, such incidents continued in 2012 and were repeatedly raised with the applicant’s parents. 33 .     As pointed out by the Government, the applicant’s sister completed her mandatory school education in mainstream classes. 34 .     The Government also referred to a position statement issued by the Institute on 4   May 2015 in response to a series of questions concerning the testing and schooling of pupils with mild intellectual disabilities. Among other things, the Institute had noted that in general, there were no tests designed for pupils from socially disadvantaged environments. There were only tests which were more suitable for testing such pupils and tests which were less suitable. None of the existing tests could determine whether a pupil suffered from a mild intellectual disability. A good test result could rule out such a disability, and a poor test result could have various causes which tests could not establish. A diagnosis had to be determined by a psychologist by way of an expert assessment, which had to take into account not only the test results, but also other information about the child. The only existing test focusing on pupils from socially disadvantaged environments was the RR screening test, which had been developed at the Institute in 2004. However, not even this test could establish a mild intellectual disability, and it could only serve to rule out such a disability if the test results were sufficient. By definition, a mild intellectual disability was permanent and could not be treated. Establishing such a disability was difficult and never sufficiently reliable when the person in question was a child. If a child appeared to suffer from a mild intellectual disability, it might later be established that his or her insufficient cognitive performance had been due to a   different disorder (for example, a learning disorder that could fade away with age) or living in a   socially disadvantaged environment lacking stimulation. A child’s performance might evolve over time and differ in different tests. If one institution diagnosed a mild intellectual disability and another ruled it out, the latter assessment was probably correct. In the event of doubts about differing results, a third opinion could be obtained from the Institute, which was the body responsible for providing the testing establishments with guidance in terms of methodology. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICE The Constitution 35.     In accordance with Article 12 of the Constitution, all human beings are equal in dignity and in rights (paragraph 1). Fundamental rights are guaranteed to everyone in Slovakia regardless of, inter alia , race, colour, language, national or social origin, nationality or ethnic origin, and no one is to be harmed, favoured or discriminated against on any of those grounds (paragraph 2). 36.     Article 42 guarantees everyone the right to education, with school attendance being compulsory under conditions set by law. The Anti-Discrimination Act 37.     The Anti-Discrimination Act (Law no. 365/2004 Coll., as amended) regulates the implementation of the principle of equal treatment and determines legal remedies in the event of a violation of this principle (section 1). 38.     Respect for the principle of equal treatment lies in the prohibition of discrimination on grounds of, inter alia , race, affiliation to a nationality or ethnic group and disability (section 2(1)). While respecting the principle of equal treatment, good morals should also be taken into account for the purpose of extending protection against discrimination (section 2(2)). Respect for the principle of equal treatment is also based on the adoption of measures to protect against discrimination (section 2(3)). 39.     Discrimination encompasses direct and indirect discrimination (section 2a(1)). Direct discrimination means any action or omission where one person is treated less favourably than another person is, has been or would be treated in a comparable situation (section 2a(2)), while indirect discrimination includes, inter alia , an apparently neutral provision or practice which puts a person at a disadvantage compared with another person, unless it is objectively justified by a legitimate aim, appropriate and necessary for achieving such an aim (section 2a(3)). 40.     Everyone must respect the principle of equal treatment, including in the field of education (section 3(1)), and discrimination in this field on the grounds referred to above is forbidden (section 5(1)). 41.     Under section 5(2)(c), the principle of equal treatment in the field of education applies only with regard to the rights of persons provided for under separate legislation regulating access to and the provision of education. 42.     Everyone has the right to bring an action in a court of law asserting his or her right to equal treatment and protection from discrimination (section   9(1) and (2)). The action may seek an order requiring the defendant to refrain from unlawful behaviour, to rectify any unlawful state of affairs and to   provide just satisfaction (section 9(2) and (3)). 43.     Proceedings commence when an action is lodged by a person who feels wronged by a violation of the principle of equal treatment. In the action, the claimant must identify the person who is alleged to have violated that principle (section 11(1)). 44.     Under section 11(2), if the claimant establishes facts giving rise to a   justified assumption that there was a violation of the principle of equal treatment, it is the defendant who must show that no such violation occurred. In a judgment of 15 December 2022 on an appeal on points of law in an anti ‑ discrimination action in an unrelated case (no. 5Cdo 102/2020), the Supreme   Court took the view that the notion of a “justified assumption” under that provision corresponded to a prima facie indication within the meaning of the Convention (paragraph 16 of that judgment). Judicial practice 45 .     On 28 February 2023 the Prešov Regional Court ruled on an appeal in an anti-discrimination action in an unrelated but similar case (no.   20Co   21/22). It noted that the high proportion of children diagnosed with an   intellectual disability was not an omnipresent phenomenon. More than 70% of such children lived in the regions of Prešov, Košice and Banská Bystrica. In Prešov and Košice, children with a diagnosed intellectual disability accounted for 8% of all pupils, whereas in Banská Bystrica, the figure was 6%, compared with a national average of 1.3%. An explanation for this disparity could be the fact that most of the Roma population lived in these three regions (almost 80%). The overrepresentation of Roma children among those diagnosed with an intellectual disability was well known. According to the most recent data, every fifth Roma child was diagnosed with a mild intellectual disability, and Roma children accounted for 71.2% of pupils in special classes for children with a mild intellectual disability, and for 41.7% of pupils in special schools. However, Roma children made up only 12.3% of pupils in primary school. The Regional Court further noted that the Ministry of Education was the guarantor of the State’s educational policy. As such, in cooperation with the legislature, it had proactively to set up mechanisms to prevent violations of the right to education and to compensate the victims of such violations if they had already occurred. The court recognised that the schools involved had no choice but to place their trust in the expert assessments carried out by psychologists. In ordinary tort law, they would bear no liability for enrolling pupils on the basis of the recommendations made by such experts. However, in view of the particular distribution of the burden of proof in anti ‑ discrimination actions, a school was also liable for a violation of a   claimant’s right to education, although it would bear the smallest share of liability. COUNCIL OF EUROPE SOURCES 46.     A summary of general sources may be found in the Court’s judgment in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, §§ 54-61 and   77-80, ECHR 2007-IV), for example. European Commission against Racism and Intolerance (ECRI) 47 .     In so far as relevant, in its third report on Slovakia (adopted on 27   June 2003), ECRI made the following observations and recommendations: Education of Roma/Gypsy children “99.     In its second report, ECRI recommended that the area of education of Roma/Gypsy children should be given immediate attention. It recommended that the practice of channelling Roma/Gypsy children into ‘special schools’ be closely examined, and that it be ensured that the testing procedures used for entry into such schools are fair and fully evaluate the true capacities of each individual child. ECRI recommended that the Slovak authorities should vigorously combat all forms of school segregation towards Roma/Gypsy children. ... 101.     ECRI recommended that steps be taken to ensure that Roma/Gypsy children enjoy the same opportunities in practice as majority children to succeed in secondary and further education. ... 103.     ... ECRI is extremely concerned to learn that high proportions of Roma children are still being channelled into special schools and that in fact in some settlements, there is no other school available. In some areas, up to 80% of Roma children attend special schools. Moreover, Roma parents are not always fully-informed concerning the different educational possibilities open to their children and may therefore concur with decisions to send their children to special schools believing that it is in the best interests of their child. The authorities have acknowledged that the tests and criteria used to determine which children should attend special schools are not satisfactory and that individual inspectors may be taking decisions which are not justified, and work is currently underway to devise new assessment techniques which are culturally-sensitive. ... Recommendations: 106.     ECRI recommends that immediate steps should be taken to end the overrepresentation of Roma children in special schools, including the preparation and implementation of culturally-fair assessment measures, training for teachers and other persons involved in assessment to ensure that they are making correct decisions, the integration of Roma children currently in special schools into the mainstream school system, and the provision of other schools in settlements where only special schools exist.” 48 .     With regard to the last recommendation mentioned above, in its fourth report on Slovakia (adopted on 19 December 2008 and published on 26 May 2009), ECRI noted and recommended as follows: “41.     The authorities have informed ECRI that in April 2008, a Concept of Education and Training of Roma Children and Pupils, including the Development of High Schools and University Education was adopted. One of the stated objectives of this concept is to   lower the percentage of Roma children attending Special Elementary Schools by, among others, maintaining and developing the ‘zero year’ for children who are deemed not to have the requisite abilities for entering the first grade of elementary school. The authorities have indicated that the concept includes the preparation of socially and culturally independent tests on the educational abilities of six and seven year-old children. The concept also provides that these tests are to be performed solely by pedagogical and psychological advisors. On 6 August 2008, a decree from the Ministry of Education outlining the procedure for placing children in Special Elementary Schools was issued and came into effect on 1 September 2008. Another measure taken with regard to the issue of the over-representation of Roma children in Special Elementary Schools is the adoption in May 2008, of a new School Act which prohibits discrimination and segregation in education. ... 43.     As the above measures have only been recently adopted and/or extended, it is difficult at the present stage to assess their impact. Any such assessment is rendered all the more difficult by the fact that no official mechanisms to collect data on the situation of Roma children placed in these types of schools have been established. ECRI notes with interest that some initial positive results have been observed by civil society actors as concerns, for example the ‘zero year’. However, the fact that most children placed in these classes are Roma has been noted as having a potentially negative impact on their integration. The authorities should also take more initiatives in addressing the problem of the overrepresentation of Roma children in Special Elementary Schools as it appears that many measures have been implemented at the initiative of/or by NGOs. 44.     ECRI thus notes with concern that research demonstrates that Roma pupils continue to be over-represented in Special Elementary Schools. Reports indicate that they are 28 times more likely to be placed in such schools than their non-Roma counterparts, that up to 50% of Roma children are erroneously placed in Special Elementary Schools or classes and that approximately 10% could be immediately reassigned to mainstream education. Three main factors play a role in this phenomenon: 1) the fact that the testing procedures for placing children in these types of schools do not take into account the situation of Roma children, including language barriers; 2) the fact that Special Elementary Schools are provided with three times more funding than mainstream schools in direct proportion to the number of registered children, thus providing an incentive for schools to place Roma children therein, and 3) the fact that for many Roma parents, Special Elementary Schools are an attractive alternative to mainstream education, among others, because their children will obtain higher scores in those institutions. ... 45.     ECRI urges the Slovak authorities to take measures to remove from Special Elementary Schools Roma children who have no disabilities and to integrate them into mainstream education. It also strongly recommends that the measures provided for in the Concept of Education and Training of Roma Children and Pupils, including the Development of High Schools and University Education, in order to address the problem of the disproportionately high number of Roma children placed in Special Elementary Schools, be implemented as soon as possible with adequate human and financial resources. 46.     ECRI recommends that the authorities assess the impact of the ‘zero year’ to   ensure that it does not have the effect of continuing the segregation of Roma children.” 49 .     ECRI’s report on Slovakia (fifth monitoring cycle), adopted and published on 19 June and 16 September 2014 respectively, contains the following observations and recommendations: Segregation of Roma children in education “125.     In its third recommendation, ECRI invited the authorities to fight the de facto segregation of Roma children in education through the provision of financial and non ‑ financial incentives to desegregate schools. As noted in ECRI’s conclusions in 2012, such incentives were not adopted and school segregation seemed to be an ongoing reality in Slovakia. 126.     Despite the ban on ethnic segregation guaranteed by the Anti-Discrimination Act and the School Act, de facto segregation continues to be practiced. ... Moreover the authorities have admitted that 30% of Roma pupils attend special schools for children with mental disabilities. ... This is often due to an incorrect diagnosis as well as state subsidies which create incentives for school managers and Roma parents to   enrol children in special schools. To counter this situation, Roma pupils are often placed in ‘zero-year classes’ in primary schools to support their educational needs before being enrolled in regular classes. However, in most cases the class composition remains the same until the end of the education cycle, resulting in segregation. 127.     ECRI considers that given the differences in quality between mainstream education and education provided in special schools or classrooms, unjustified placement in such schools seriously affects Roma children’s future education and employment opportunities. ... 129.     The authorities have informed ECRI that they are aware of this persisting problem despite all the legal and practical steps taken so far. The issue has now been discussed in the context of the next phase of the [national Roma Integration Strategy] with a view to allocating adequate funds to programmes countering Roma segregation in school. In particular, the authorities consider that ‘it is necessary to increase the quality of the diagnosis prior to assignment to special schools’. 130.     ECRI recommends that authorities monitor even more closely the system for assigning Roma pupils to special schools; ensure that the assessment of special needs is used to design an individual curriculum within the mainstream education rather than placing pupils in special schools; adequately inform Roma parents of what special schooling entails; introduce a clear duty for schools to desegregate education and at the same time provide effective support to schools and teachers to achieve this goal.” 50 .     ECRI’s report on Slovakia (sixth monitoring cycle), adopted and published on 1   October and 8 December 2020 respectively, contains the following observations and recommendations: “86.     A second serious problem, yet to be resolved, is currently the subject of European Union infringement proceedings [for more details, see paragraphs 29 et seq. of this judgment above]. By comparison with the European average, Slovakia has far too many Roma children placed in special education programmes which were originally intended for children with mild intellectual disabilities. Many actors in civil society and the education sector underline that the tests that are set before children start attending primary school do not make it possible to establish whether a child is actually suffering from mild intellectual disabilities or merely difficulties due to the highly precarious circumstances in which he or she is growing up. Since most of the children affected by this practice are Roma children, this system appears to constitute indirect discrimination against Roma children which would be contrary to Article 14 [of the Convention] and Article 2 of Protocol No. 1 thereto. 87.     According to the schoolteachers whom the ECRI delegation met, placing Roma children in special classes and schools is often the only way of teaching them in smaller classes and obtaining the essential extra teaching staff. Without these additional resources, it is indeed not possible to do more for these children, who are often left to their own devices, and try to compensate for all the developmental problems that they have accumulated before being enrolled in a school. At the same time, it would seem that there are financial incentives, for both schools and families, which encourage the enrolment of Roma children in special education, and this education is also perceived by Roma parents as a means of protection against the considerable discrimination t