CEDH · PRESS;GCJUDGMENTS;ENG — 16 mars 2010

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Croatia (application no. 15766/03)   SEGREGATING ROMA CHILDREN IN CROATIAN PRIMARY SCHOOLS DISCRIMINATORY   By nine votes to eight:   Violation of Article 6 §1 (right to a fair trial within a reasonable time) and of Article   14 (prohibition of discrimination) taken in conjunction with Article 2 of Protocol No. 1 (right to education) to the European Convention on Human Rights   Principal facts   The applicants are 15 Croatian nationals of Roma origin. They were born between 1988 and 1994 and all live in Orehovica, Podturen and Trnovec in northern Croatia. The case concerned the applicants’ complaint that they had been segregated at primary school because they were Roma.   The applicants attended primary school in the villages of Macinec and Podutren at different times between the years 1996 and 2000. They participated in both Roma-only and mixed classes before leaving school at the age of 15.   In April 2002 the applicants brought proceedings against their primary schools. They claimed that the Roma-only curriculum in their schools had 30   % less content than the official national curriculum. They alleged that that situation was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment. They also submitted a psychological study of Roma children who attended Roma-only classes in their region which reported that segregated education produced emotional and psychological harm in Roma children, both in terms of self-esteem and development of their identity.   In September 2002 Čakovec Municipal Court dismissed the applicants’ complaint. It found that the reason why most Roma pupils were placed in separate classes was that they needed extra tuition in Croatian. Furthermore, the curriculum at Podturen and Macinec Elementary schools was the same as that used in parallel classes in those schools. Consequently, the applicants had failed to substantiate their allegations concerning racial discrimination. The applicants’ complaint was also subsequently dismissed on appeal.   The applicants’ constitutional complaint, lodged in November 2003, was dismissed on similar grounds in February 2007.   Complaints, procedure and composition of the Court   The applicants alleged that their segregation into Roma-only classes at school deprived them of their right to education in a multicultural environment and discriminated against them, and made them endure severe educational, psychological and emotional harm, and in particular feelings of alienation and lack of self-esteem. They also complained about the excessive length of the proceedings they brought before the domestic courts concerning those complaints. They relied, in particular, on Article   3 (prohibition of inhuman or degrading treatment), Article   6 §   1 (right to a fair hearing within a reasonable time), Article   2 of Protocol No.   1 (right to education) and Article   14 (prohibition of discrimination) of the European Convention on Human Rights.   The application was lodged with the European Court of Human Rights on 8 May 2003.   In a judgment of 17   July 2008, the Court held, unanimously, that there had been no violation of Article   2 of Protocol No.   1 taken alone or in conjunction with Article   14 of the Convention concerning the applicants’ complaint that they were placed in Roma-only classes at primary school; and, a violation of Article 6 § 1 of the Convention concerning the excessive length of the proceedings brought by the applicants in particular before the Constitutional Court.   On 13 October 2008 the applicants requested that the case be referred to the Grand Chamber under Article 43 (referral to the Grand Chamber) and on 1 December 2008 the panel of the Grand Chamber accepted that request.   On 23 January 2009 and 11 and 12 February 2009 respectively, the President of the Court gave the organisation “Greek Helsinki Monitor”, the Government of the Slovak Republic and the organisation “Interights” leave to intervene as a third party in the Court’s proceedings under Article 36 § 2 of the Convention (third party intervention) and Rule 44 § 2 of the Rules of Court.   A public hearing was held at the Human Rights Building, Strasbourg, on 1   April   2009.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Jean-Paul Costa (France), President , Nicolas Bratza (the United Kingdom), Françoise Tulkens (Belgium), Josep Casadevall (Andorra), Karel Jungwiert (the Czech Republic), Nina Vajić (Croatia), Anatoly Kovler (Russia) Elisabeth Steiner (Austria), Alvina Gyulumyan (Armenia), Renate Jaeger (Germany), Egbert Myjer (the Netherlands), David Thór Björgvinsson (Iceland), Ineta Ziemele (Latvia), Isabelle Berro-Lefèvre (Monaco), Mirjana Lazarova Trajkovska (“the Former Yugoslav Republic of Macedonia”), Işıl Karakaş (Turkey), Nebojša Vučinić (Montenegro), judges , and also Vincent Berger , Jurisconsult .   Decision of the Court   Article 6§1   The Court reiterated that the right to primary education is a civil right under Article 6 and therefore it had to apply in this case. It then found that the length of proceedings (more than four years) before the Constitutional Court in a case of such importance had been excessive and concluded unanimously that the right of the applicants to a fair trial within a reasonable time had not been respected, in violation of Article 6 §1.   Article 14 taken together with Article 2 of Protocol No. 1   The Court found that this case raised primarily a discrimination issue. It recalled its findings from its earlier case law that, as a result of their history, the Roma had become a specific type of disadvantaged and vulnerable minority. They therefore required special protection, including in the sphere of education.   There had not been a general policy to automatically place Roma pupils in separate classes in the schools which the applicants had attended. However, only Roma children had been placed in separate classes in those primary schools. Consequently, there had been clearly a difference in treatment applied to Roma children, which the applicants were. The State therefore had to show that the practice of segregating Roma pupils had been objectively justified, appropriate and necessary.   The Court noted the reasons given by the Government for the placement of the applicants in Roma-only classes, namely that they had lacked adequate command of the Croatian language. It considered that while temporary placement of children in a separate class on the grounds of language deficiency was not, as such, automatically contrary to Article 14 of the Convention, when this affected, as in the present case, exclusively the members of a specific ethnic group, specific safeguards had to be put in place.   The Croatian laws at the time had not provided for separate classes for children lacking proficiency in the Croatian language. In addition, the tests applied for deciding whether to assign pupils to Roma-only classes had not been designed specifically to assess the children’s command of the Croatian language, but had instead tested the children’s general psycho-physical condition. While the applicants might have had some learning difficulties, as suggested by the fact that they had failed to go up a grade for the initial two years of their schooling, those difficulties had not been adequately addressed by simply placing them in Roma-only classes.   As regards the curriculum, once assigned to Roma-only classes the applicants had not been provided with a programme specifically designed to address their alleged linguistic deficiency. While additional Croatian classes had been offered to the applicants, that had not been sufficient given that the third, fourth and fifth of them had never received such classes, the sixth to eleventh applicant had only been offered those in their third grade and the thirteenth to fifteenth applicants - in their first grade. In any event, even such additional classes in Croatian could have at best only compensated in part the lack of a curriculum specifically designed to address the needs of pupils placed in separate classes on the grounds that they lacked an adequate command of Croatian.   All applicants had spent a substantial period of their education in Roma-only classes. The eleventh to fifteenth applicants in particular had spent all eight years of their schooling in a Roma-only class. However, there had been no particular monitoring procedure and, although some of the applicants had attended mixed classes at times, the Government had failed to show that any individual reports had been drawn up in respect of each applicant and his or her progress in learning Croatian. The lack of a prescribed and transparent monitoring procedure had left a lot of room for arbitrariness.   Furthermore, the statistics submitted by the applicants for the region in which the applicants lived, and not contested by the Government, had showed a drop-out rate of 84% for Roma pupils before completing primary education. The applicants, without exception, had left school at the age of fifteen without completing primary education and their school reports evidenced poor attendance. Such a high drop-out rate of Roma pupils in that region had called for the implementation of positive measures in order to raise awareness of the importance of education among the Roma population and to assist the applicants with any difficulties they had encountered in following the school curriculum. However, according to the Government, the social services had been informed of the pupil’s poor attendance only in the case of the fifth applicant and no precise information had been provided on any follow-up.   As regards the parents’ passivity and lack of objections in respect of the placement of their children in separate classes, the Court held that the parents, themselves members of a disadvantaged community and often poorly educated, had not been capable of weighing up all the aspects of the situation and the consequences of giving their consent. In addition, no waiver of the right not to be subjected to racial discrimination could be accepted, as it would be counter to an important public interest.   The applicants could have attended the government-funded evening school in a nearby town. However, that had not been sufficient to repair the above-described deficiencies in the applicants’ education.   Consequently, while recognising the efforts made by the Croatian authorities to ensure that Roma children received schooling, the Court held that no adequate safeguards had been put in place at the relevant time to ensure sufficient care for the applicants’ special needs as members of a disadvantaged group. Accordingly, the placement, at times, of the applicants in Roma-only classes during their primary education had not been justified, in violation of Article 14 taken together with Article 2 of Protocol No. 1.   Article 41 (just satisfaction)   The Court held that Croatia is to pay to each applicant 4,500 euros (EUR) in respect of non-pecuniary damage and, to the applicants jointly, EUR 10,000 in respect of costs and expenses.   Judges Jungwiert, Vajić, Kovler, Gyulumyan, Jaeger, Myjer, Berro-Lefèvre and Vučinić expressed a joint partly dissenting opinion which is annexed to the judgment.   ***   The judgment is available in English and French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79) The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention).