CEDH · CASELAW;CLIN;ENG — 5 juin 2008

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Greece - 32526/05 Judgment 5.6.2008 [Section I] Article 14 Discrimination Roma children denied access to school before being assigned to special classrooms in an annex to the main primary school buildings: violation Facts : The 11 applicants were all Greek nationals of Roma origin living at the Psari authorised residential site near Aspropyrgos (Greece). On 21 September 2004 the applicants, with other Roma parents, visited the premises of the Aspropyrgos primary schools in order to enrol their minor children. Their action followed a press release issued in August 2004 by the Minister for Education stressing the importance of integrating Roma children into the national education system. There had also been a visit, on 10 September 2004, by the State Secretary for the education of persons of Greek origin and intercultural education, accompanied by two Greek Helsinki Monitor representatives, to the Roma camps in Psari, for the purpose of ensuring the enrolment of all school-age Roma children. According to the applicants, the head teachers of two schools had refused to enrol their children on the ground that they had not received any instructions on this matter from the competent ministry. The head teachers allegedly informed them that as soon as the necessary instructions had been received they would be invited to proceed with the appropriate formalities. However, the parents were apparently never invited to enrol their children. The Greek Government claimed that the applicants had simply approached the schools to obtain information with a view to the enrolment of their children, and that the headmistress of the tenth primary school of Aspropyrgos had told them what documents were necessary for that purpose. Subsequently, in November and December 2004, a delegation of primary school teachers from Aspropyrgos had visited the Psari Roma camp to inform and persuade the parents of minor children of the need to enrol them, but that action had been unsuccessful as the parents concerned had not enrolled their children for the current school year. An informal meeting of the competent authorities was convened by the Director of Education for the Attica administrative district on 23 September 2004 in order to find a solution to the problem of the capacity of primary schools in Aspropyrgos to cater for further enrolments of Roma children. It was decided, firstly, that pupils at the age of initial school admission could be taught on the existing premises of the Aspropyrgos primary schools, and secondly, that additional classes would be created for older children, to prepare them for integration into ordinary classes. On 9 June 2005, on the initiative of the Association for coordination of organisations and communities for human rights of Roma in Greece (SOKARDE), 23 children of Roma origin, including the applicants’ children, were enrolled for the school year 2005-2006. According to the Government, the number of children came to 54. In September and October 2005, from the first day of the school year, non-Roma parents protested about the admission of Roma children to primary school and blockaded the school, demanding that the Roma children be transferred to another building. The police had to intervene several times to maintain order and prevent illegal acts being committed against pupils of Roma origin. On 25 October 2005 the applicants signed, according to them under pressure, a statement drafted by primary school teachers to the effect that they wanted their children to be transferred to a building separate from the school. Thus, from 31 October 2005, the applicants’ children were given classes in another building and the blockade of the school was lifted. Three preparatory classes were housed in prefabricated classrooms on land belonging to the municipality of Aspropyrgos. Following a fire in April 2007, the Roma children were transferred to a new primary school set up in Aspropyrgos in September 2007. However, on account of infrastructure problems, that school was not yet operational in October 2007.   Law : Article 14 taken together with Article 2 of Protocol No. 1 – The applicants argued that their children had been subjected, without any objective or reasonable justification, to treatment that was less favourable than that given to non-Roma children in a comparable situation and that this situation constituted discrimination contrary to the Convention.   Existence of evidence justifying a presumption of discrimination : It was not in dispute between the parties that the applicants’ children had missed the school year 2004-2005 and that preparatory classes had been set up inside one of the primary schools in Aspropyrgos. The creation of the three preparatory classes in question had not been planned until 2005, when the local authorities had had to address the question of schooling for Roma children living in the Psari camp. The Government gave no example of special classes being created inside primary schools in Aspropyrgos prior to the present case, even though other Roma children had been enrolled there in the past. In addition, as regards the composition of the preparatory classes, they were attended exclusively by Roma children. Even though the incidents of a racist nature that took place in front of Aspropyrgos primary school in September and October 2005 could not be imputed to the Greek authorities, it could nevertheless be presumed that those incidents influenced the decision to place pupils of Roma origin in an annexe to the primary school. In short, the evidence adduced by the applicants and other evidence in the case file could be regarded as sufficiently reliable and revealing to create a strong presumption of discrimination, and it was therefore for the Government to show that this difference in treatment was the result of objective factors, unrelated to the ethnic origin of the persons concerned.   Existence of objective and reasonable justification : The material in the case file did not show that the applicants had met with an explicit refusal, on the part of the Aspropyrgos primary school authorities, to enrol their children for the school year 2004-2005. However, even supposing that the applicants had simply sought to obtain information on the conditions of enrolment of their children at primary school, there was no doubt that they had explicitly expressed to the competent school authority their wish to enrol their children. Given the Roma community’s vulnerability, which made it necessary to pay particular attention to their needs, and considering that Article 14 required in certain circumstances a difference of treatment in order to correct inequality, the competent authorities should have recognised the particularity of the case and facilitated the enrolment of the Roma children, even if some of the requisite administrative documents were missing. Greek law recognised the specific nature of the Roma community’s situation by facilitating the school enrolment procedure for their children. In addition, domestic legislation provided for the possibility of enrolling pupils at primary school simply by means of a declaration signed by someone with parental authority, provided birth certificates were produced in good time. This obligation should have been particularly clear to the Aspropyrgos school authorities as they were aware of the problem of providing schooling for the children living in the Psari camp and of the need to enrol them at primary school. As regards the special classes, the competent authorities had not adopted a single, clear criterion in choosing which children to place in the preparatory classes. The Government provided no evidence that any suitable tests were ever given to the children concerned in order to assess their capacities or potential learning difficulties. Furthermore, the declared objective of the preparatory classes was for the pupils concerned to attain the right level so that they could enter ordinary classes in due course. However, the Government cited no examples of pupils – and there were over 50 of them – who, after being placed in a preparatory class for two school years, were then admitted to the ordinary classes of the Aspropyrgos primary school. Nor did the Government mention any assessment tests that Roma children should have been periodically required to sit in order for the school authorities to assess, on the basis of objective data rather than approximate appraisal, their ability to follow ordinary classes.   The Court stressed the importance of introducing a suitable system for assessing the capacities of children with learning needs, to monitor their progress, especially in the case of children from ethnic minorities, to provide for possible placement in special classes on the basis of non-discriminatory criteria. In addition, in view of the racist incidents triggered by the parents of non-Roma children, the setting-up of such a system would have given the applicants the feeling that their children had not been placed in preparatory classes for reasons of segregation. Whilst admitting that it was not its role to rule on this issue of educational psychology, the Court considered that this would have been of particular help in the integration of Roma pupils, not only into ordinary classes but into local society generally. Moreover, the Court was not satisfied that the applicants, as members of an underprivileged and often uneducated community, had been able to assess all the aspects of the situation and the consequences of their consent to the transfer of their children to a separate building. Reiterating the fundamental importance of the prohibition of racial discrimination, the Court considered that the possibility that someone could waive their right not to be the victim of such discrimination was unacceptable. Such a waiver would be incompatible with an important public interest. That being so, in spite of the authorities’ willingness to educate Roma children, the conditions of school enrolment for those children and their placement in special preparatory classes – in an annexe to the main school building – ultimately resulted in discrimination against them. Conclusion : violation (unanimously).   Article 13   – The Greek Government had not adduced evidence of any effective remedy that the applicants could have used in order to secure redress for the alleged violation of Article 14 of the Convention taken together with Article 2 of Protocol No. 1. Conclusion : violation (unanimously).   © 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