CEDH · PRESS;ADMISSIBILITYDECISIONS;ENG — 29 novembre 2010

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Hungary (application no.   2351/06 ) the European Court of Human Rights has unanimously declared the application inadmissible. The decision is final. Principal facts The applicants, Tibor Horváth and Géza Vadászi, are Hungarian nationals, born in 1987, who live in Kesznyéten (Hungary). They are of Roma origin. Following their qualification by a county expert panel as having mild intellectual disabilities, which was confirmed by a second examination in 2000, they were placed in a special class of the local school, which they attended from 1994 until the completion of their studies. In 2004 the applicants’ lawyer filed a criminal complaint against unknown perpetrators on the charge, in particular, of endangering minors. She alleged that the education in the special class had jeopardised the applicants’ intellectual progress, since only a reduced curriculum had been offered – which did not include biology, chemistry, physics or a foreign language – and since the teacher in charge did not have the appropriate qualification, namely a degree in special pedagogy. The lawyer complained that the assignment of the applicants to the special class had served the purpose of their physical segregation. In the course of the subsequent investigation, a report by a public education expert concluded that the limited curriculum might have jeopardised the applicants’ higher education, while a new examination of the applicants’ intellectual ability confirmed the findings of the two earlier examinations, and the psychologist in charge concluded that in view of their mental disabilities the applicants’ development could not have been jeopardised by their placement in the special class. In December 2004 the district’s public prosecutor discontinued the investigation, finding no appearance of a grave breach of duty on the part of the school officials, and in January 2005 the county’s public prosecutor dismissed the applicants’ complaint against that decision. The applicants’ lawyer subsequently hired a private expert in clinical psychology and public education, who established that the applicants had not suffered from the kind of serious mental disability which would have justified their separate education, accordingly their placement in the special class had endangered their mental and psychological development. Relying on that opinion, the lawyer preferred a private bill of indictment charging the school director and the expert responsible for reviewing the applicants’ intellectual ability in 2000 with the offence of endangering minors. The motion was dismissed by the district court in June 2005. Complaints, procedure and composition of the Court The application was lodged with the European Court of Human Rights on 30 December 2005. Relying on Article 3 of the European Convention on Human Rights (prohibition of degrading treatment) and Article 2 of Protocol No. 1 (right to education), alone and in conjunction with Articles 13 (right to an effective remedy) and 14 (prohibition of discrimination), the applicants complain that their placement in the special class was a discriminatory measure due to their Roma origin. The application was lodged with the European Court of Human Rights on 30 December 2005. The decision was given by a Chamber of seven, composed as follows: Françoise Tulkens (Belgium), President , Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), András Sajó (Hungary), Nona Tsotsoria (Georgia), Kristina Pardalos (San Marino), Guido Raimondi (Italy) , Judges ,   and also Françoise Elens-Passos , Deputy Section Registrar. Decision of the Court As the Hungarian Government pointed out and as was confirmed by the applicants’ submissions, they had not made use of a civil remedy under the Public Education Act. The Act provided for compensation for damages caused to a pupil in respect of his or her education, and compensation under that provision had been awarded by the domestic civil courts in several cases concerning allegations similar to those in the applicant’s case. Without prejudging the effectiveness of this remedy, the Court therefore considered that, as far as the complaint under Article 2 of Protocol No. 1 was concerned, the applicants had failed to exhaust the domestic remedies, one of the admissibility criteria required by Article 35 of the Convention. The placement of Roma children in special remedial classes, physically segregated, created a presumption of a type of discrimination which might amount to degrading treatment. In such a situation the burden shifted to the State concerned, which had to show that the difference in treatment was not discriminatory. The Court was not ready to accept the Government's assertion that the placement of Roma children in special classes was a priori excluded from the scope of criminal law. However, the final decision in the criminal proceedings brought by the applicants’ lawyer against unknown perpetrators had been adopted in January 2005, more than six months before the application was lodged with the Court. That part of the application was therefore inadmissible for non-compliance with the six-month rule in Article 35 § 1 of the Convention. As regards the private prosecution for endangering minors against the school director and the expert, the Court noted that the applicants’ motion had not made any reference, expressly or in substance, to the complaints as submitted to the Court. In particular, no allegations of racially motivated segregation or discrimination could be read in the motion. The Court therefore concluded that that part of the application likewise had to be declared inadmissible for non-exhaustion of domestic remedies. The decision is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, please subscribe to the Court’s RSS feeds . Press contacts [email protected] | tel: +33 3 90 21 42 08   Nina Salomon (tel: + 33 3 90 21 49 79) Emma Hellyer (tel: + 33 3 90 21 42 15) Tracey Turner-Tretz (tel: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 3 88 41 35 70) Céline Menu-Lange (tel: + 33 3 90 21 58 77) Frédéric Dolt (tel: + 33 3 90 21 53 39) 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.