CEDH · CASELAW;CLIN;ENG — 31 mai 2022

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Albania - 73548/17 and 45521/19 Judgment 31.5.2022 [Section III] Article 1 of Protocol No. 12 General prohibition of discrimination Failure to implement swift and comprehensive desegregation measures in an elementary school attended almost exclusively by Roma and Egyptian children: violation Article 46 Article 46-2 Execution of judgment Individual measures Respondent state required to take desegregation measures in an elementary school attended almost exclusively by Roma and Egyptian children Facts – The applicants are Albanian nationals of Roma and Egyptian ethnic origin forming different households. Their children attended the “Naim Frashëri” elementary school in Korça. During the 2012/19 academic years, the school was attended almost exclusively by children of the Roma and Egyptian minorities. Since 2012 the Government have implemented a food support programme whereby food packages have been provided to Roma and Egyptian pupils attending that school with the aim of increasing school attendance rates of the children of those communities. Eventually, segregation complaints by the European Roma Rights Centre (ERRC) and another organisation, resulted in a binding decision by the Commissioner against Discrimination, on 22   September 2015, finding that the Roma and Egyptian children of that school were suffering indirect discrimination on account of their over-representation in the school and ordering the competent bodies to take desegregation measures. The applicants complained that the authorities had failed to implement such measures. Law – Article 1 of Protocol No.   12: (a)     Exhaustion of domestic remedies – The applicants had not been required to file a discrimination claim with the domestic courts, which would essentially have had the same objective as the ERRC’s action before the Commissioner and which, in any event, had not been shown to be an effective remedy in the present case. In the absence of an appeal by the authorities against the Commissioner’s decision, that decision had become final and enforceable. (b)     Merits – The right to inclusive education, in the enjoyment of which the applicants had alleged to have been treated differently, was provided for by domestic law. It had not been disputed in the domestic proceedings or before the Court that the applicants’ situation had amounted to segregation and that desegregation measures had been called for. Nor had the applicants contested the Government’s position that the situation had been unintentional. Notwithstanding discrimination that was potentially contrary to the Convention might result from a de facto situation and did not necessarily require discriminatory intent. The salient question in the instant case was therefore whether the Government had complied with their positive obligation to take steps to correct the applicants’ factual inequality and to avoid the perpetuation of the discrimination that had resulted from their over-representation in the school thereby breaking their circle of marginalization and allowing them to live as equal citizens from the early stages of their life. The Court replied in the negative. First of all, although two measures had been taken by the authorities to address the applicants’ segregation, these had been implemented with delays which had been incompatible both with the time sensitivity of a situation where children had been segregated and the Commissioner’s decision that measures be taken “immediately”. More specifically, the decision to remove the ethnicity criterion for the pupils that benefited from the food support programme, in an effort to attract pupils of all ethnicities in the school, had been adopted almost one and a half years after the Commissioner’s decision whereas the renovation of the school building had ended four years after that decision. Secondly, the Government had not set forth any objective reason for failing to implement the measures that had been discussed by the competent Ministry, namely the extension of the food support programme to four additional schools in the area – which could presumably have had encouraged some of the Roma/Egyptian pupils of the school to move to other schools – and the merger of the “Naim Frashëri” school with three other non-segregated schools. Both these measures had been likely to have a had more immediate beneficial effect on the Roma and Egyptian children. In this regard, the Court was unable to accept the authorities’ justification that the merger had not been implemented due to the reconstruction of the “Naim Frashëri” school, as the reconstruction work had lasted only for a limited period of time. Indeed, the merger appeared a very pertinent solution and could have contributed to the creation of schools where the ratio between Roma/Egyptian and other pupils had been reasonably proportional to the city-wide ratio for elementary schools. The authorities had already implemented similar solutions in respect of segregated schools elsewhere in the country where in addition they had also provided transportation for the pupils. While it was not for the Court to indicate the specific measures to be undertaken to remedy a school segregation situation, it was nevertheless difficult to understand the reasons why this approach had not been implemented in the present case too. The Court had already found a violation of the prohibition of discrimination in a similar context in Lavida and Others v. Greece where the State had failed to implement desegregating measures. Likewise, in the instance case, the delays and the non-implementation of appropriate desegregating measures could not be considered as having had an objective and reasonable justification. Conclusion : violation (unanimously). Article 41: EUR 4,500 per applicants’ household in respect of non-pecuniary damage. Article 46: The respondent State had to take measures to end the discrimination of Roma and Egyptian pupils of the “Naim Frashëri” school as ordered by the Commissioner’s decision. (See also Lavida and Others v. Greece , 7973/10 , 30   May 2013; Zarb Adami v. Malta , 17209/02, 20   June 2006, Legal Summary ; D.H. and Others v. the Czech Republic [GC], 57325/00, 13   November 2007, Legal Summary ; Horváth and Kiss v. Hungary , 11146/11 , 29   January 2013)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes