CEDH · CASELAW;CLIN;ENG — 13 novembre 2007

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 102 November 2007 D.H. and Others v. the Czech Republic [GC] - 57325/00 Judgment 13.11.2007 [GC] Article 14 Discrimination Placement of Roma gypsy children in “special” schools: violation   Article 35 Applicants not required by highest national court to exhaust the remedies the respondent Government alleged they should have used: preliminary objection dismissed   Article 46 Article 46-2 Execution of judgment Measures of a general character Need for general measures not demonstrated in view of repeal of impugned legislation and the recommendations of the Committee of Ministers: request dismissed   Facts : The applicants are 18 Czech nationals of Roma origin. The case concerns their placement in special schools because, they allege, of their Roma origins. Between 1996 and 1999 the applicants, then still minors, were placed in special schools for children with intellectual deficiencies, unable to attend ordinary schools. According to the applicable schools legislation, the decision to place a child in a special school was taken by the head teacher on the basis of the results of tests to measure the child’s intellectual capacity carried out in an educational psychology centre, and was subject to the consent of the child’s legal guardian. The case file shows that the applicants’ parents had consented to and, in some instances, expressly requested their children’s placement in a special school. The decisions on placement were then taken by the head teachers of the special schools concerned after referring to the recommendations of the educational psychology centres where the applicants had undergone psychological tests. The written decision concerning the placement was sent to the children’s parents. It contained instructions on the right to appeal, a right which none of the applicants exercised. Disputing the reliability of the tests and arguing that their parents had not been adequately informed of the consequences of consenting to their placement, 14 of the applicants asked the Education Authority to reconsider, outside the formal appeal procedure, the administrative decisions to place them in special schools. The Education Authority found the impugned decisions to be in compliance with the legislation. At the same time, relying on Articles 3 and 14 of the Convention and Article 2 of Protocol No.   1, among other provisions, 12 of the applicants lodged constitutional appeals in which they complained of de facto discrimination in the general functioning of the special education system, and of not having been adequately informed of the consequences of their placement in special schools. They submitted that their placement in special schools was a general practice that resulted in segregation and racial discrimination, reflected in the existence side by side of two separately organised educational systems, namely special schools for the Roma and “ordinary” primary schools for the majority of the population. The Constitutional Court dismissed the appeals, partly on the ground that it had no jurisdiction to hear them and partly on the ground that they were manifestly unfounded. Law : Preliminary objection of non-exhaustion rejected – The Government submitted that the applicants had failed to exhaust domestic remedies. The Czech Constitutional Court had decided to disregard that omission. It would therefore be unduly formalistic to require the applicants to exercise a remedy which even the highest court of the country concerned had not obliged them to use. Merits – The Chamber had held by six votes to one that there had been no violation of Article 14 of the Convention read in conjunction with Article 2 of Protocol No.   1. In its view, the Czech Government had succeeded in establishing that the system of special schools had not been introduced solely to cater for Roma children and that considerable efforts had been made in those schools to help certain categories of pupils to acquire a basic education. The Chamber had observed that the rules governing children’s placement in special schools did not refer to the pupils’ ethnic origin, but pursued the legitimate aim of adapting the education system to the needs, aptitudes and disabilities of the children. The Grand Chamber noted first of all that as a result of their turbulent history and constant uprooting the Roma had become a specific type of disadvantaged and vulnerable minority and, as such, required special protection, including in the field of education. Presumption of indirect discrimination : The applicants submitted that by being placed in special schools they had, without objective and reasonable justification, been treated less favourably than non-Roma children in a comparable situation and that this amounted to “indirect” discrimination. They had produced statistical evidence based on information supplied by the head teachers showing that more than half the pupils placed in the local special schools were Roma children, whereas Roma children accounted for only 2.26% of the city’s primary school children. The Grand Chamber accepted, in the absence of official national statistics on pupils’ ethnic origin, that the statistics submitted by the applicants might not be entirely reliable. It nevertheless considered that these figures revealed a dominant trend that had been confirmed by both the respondent State and independent supervisory bodies. In their reports submitted in accordance with Article 25 § 1 of the Council of Europe’s Framework Convention for the Protection of National Minorities, the Czech authorities had admitted that in 1999 Roma pupils made up between 80% and 90% of the total number of pupils in some special schools and that in 2004 “large numbers” of Roma children were still being placed in special schools. According to a report published by ECRI (the European Commission against Racism and Intolerance) in 2000, Roma children were “vastly over-represented” in special schools. Even though the exact percentage of Roma children in special schools at the material time remained difficult to establish, their number was disproportionately high, and Roma pupils formed a majority of the pupils in special schools. Despite being couched in neutral terms, the relevant statutory provisions had therefore had, de facto , considerably more impact on Roma children than on non-Roma children. In these circumstances, the evidence submitted by the applicants could be regarded as sufficiently reliable and significant to give rise to a strong presumption of indirect discrimination, in a sphere where it was not necessary to prove any discriminatory intent on the part of the relevant authorities. The burden of proof therefore lay with the Government to show that the difference in the impact of the legislation was the result of objective factors unrelated to ethnic origin. Objective and reasonable justification : The Court accepted that the Czech authorities’ decision to retain the special-school system was motivated by the desire to find a solution for children with special educational needs. However, it shared the disquiet of the other Council of Europe institutions who had expressed concerns about the more basic curriculum followed in these schools and, in particular, the segregation the system caused. As to the tests used to evaluate the children’s intellectual capacities, all the children who were examined sat the same tests, irrespective of their ethnic origin. The Czech authorities themselves had acknowledged in 1999 that “Romany children with average or above-average intellect” were often placed in such schools on the basis of the results of psychological tests and that the tests were conceived for the majority population and did not take Roma specifics into consideration. In addition, various independent bodies of the Council of Europe (the Advisory Committee on the Framework Convention for the Protection of National Minorities, ECRI and the Commissioner for Human Rights) had expressed doubts over the appropriateness of the tests. The Court considered that there was a danger that the tests were biased and that the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them. In those circumstances, the tests in question could not serve as justification for the impugned difference in treatment. As regards parental consent, which was the decisive factor according to the Government, the Court was not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent to placement in special schools. In view of the fundamental importance of the prohibition of racial discrimination, the Grand Chamber considered that, even assuming the conditions for waiving a right guaranteed by the Convention were satisfied, no waiver of the right not to be subjected to racial discrimination could be accepted. In conclusion, the Czech Republic was not alone in having encountered difficulties in providing schooling for Roma children: other European States had had similar difficulties. Unlike some countries, the Czech Republic had sought to tackle the problem. However, the schooling arrangements for Roma children were not attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class. Furthermore, as a result of the arrangements the applicants had been placed in schools for children with mental disabilities where a more basic curriculum was followed than in ordinary schools and where they were isolated from pupils from the wider population. As a result, they had received an education which compounded their difficulties and compromised their subsequent personal development instead of tackling their real problems or helping them to integrate later into the ordinary schools and develop the skills that would facilitate life among the majority population. In these circumstances and while recognising the efforts made by the Czech authorities to ensure that Roma children received schooling, and the difficulties they had encountered, the Court was not satisfied that the difference in treatment between Roma children and non-Roma children was objectively and reasonably justified and that there existed a reasonable relationship of proportionality between the means used and the aim pursued. As it had been established that the relevant legislation as applied at the material time had had a disproportionately prejudicial effect on the Roma community, the applicants as members of that community had necessarily suffered the same discriminatory treatment. Conclusion : violation (thirteen votes to four). Article 41 – EUR 4,000 to each applicant in respect of non-pecuniary damage. The applicants submitted that general measures had to be taken at the national level to remove any hindrance to the exercise of their rights. However, the impugned legislation had been repealed and the Committee of Ministers had recently made recommendations to the member States on the education of Roma/Gypsy children in Europe.   © 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