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ORSUS AND OTHERS v. CROATIA - 15766/03 [2010] ECHR 337 (16 March 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/337.html
Cite as:
[2010] ECHR 337,
28 BHRC 558,
(2011) 52 EHRR 7,
[2010] ELR 445
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Case
of Oršuš and Others v. Croatia
(Application
no. 15766/03)
Judgment
Strasbourg,
16 March 2010
GRAND
CHAMBER
CASE OF ORŠUŠ AND OTHERS v. CROATIA
(Application
no. 15766/03)
JUDGMENT
STRASBOURG
16 March 2010
This
judgment is final but may be subject to editorial revision.
In the case of Oršuš
and Others v. Croatia,
The
European Court of Human Rights (Grand Chamber), sitting as a Grand
Chamber composed of:
Jean-Paul Costa,
President,
Nicolas Bratza,
Françoise
Tulkens,
Josep Casadevall,
Karel
Jungwiert,
Nina Vajić,
Anatoly
Kovler,
Elisabeth Steiner,
Alvina
Gyulumyan,
Renate Jaeger,
Egbert Myjer,
David
Thór Björgvinsson,
Ineta Ziemele,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Işıl
Karakaş,
Nebojša Vučinić,
judges,
and Vincent Berger,
Jurisconsult,
Having
deliberated in private on 1 April 2009 and 27 January 2010,
Delivers
the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
The
case originated in an application (no. 15766/03) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by fifteen Croatian nationals (“the
applicants”), on 8 May 2003.
The
applicants were represented before the Court by the European Roma
Rights Center based in Budapest, Mrs L. Kušan, a lawyer
practising in Ivanić-Grad and Mr J. Goldston, of the New York
Bar. The Croatian Government (“the Government”) were
represented by their Agent, Mrs Š. StaZnik.
The
applicants alleged, in particular, that the length of proceedings
before the national authorities had been excessive and that they had
been denied the right to education and discriminated against in the
enjoyment of that right on account of their race or ethnic origin.
The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). On 17 July 2008 the Chamber of
that Section, consisting of Judges Christos Rozakis, Nina Vajić,
Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio
Malinverni and George Nicolaou and of Søren Nielsen, Section
Registrar, found unanimously that there had been a violation of
Article 6 § 1 of the Convention on account of the excessive
length of the proceedings, and that there had not been a violation of
Article 2 of Protocol No. 1 taken alone or in conjunction with
Article 14 of the Convention. The Chamber also found that the first
applicant had withdrawn his application on 22 February 2007 and it
therefore discontinued the examination of the application in so far
as it concerned the first applicant.
On
13 October 2008 the applicants requested, in accordance with Article
43 of the Convention and Rule 73, that the case be referred to the
Grand Chamber. On 1 December 2008 a panel of the Grand Chamber
accepted that request.
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention
and Rule 24.
The
applicants and the Government each filed observations on the
admissibility and merits of the case. In addition, third-party
comments were received from the Government of the Slovak Republic,
Interights and Greek Helsinki Monitor.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 1 April 2009 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mrs Š.
StaZnik, Agent,
Mr D.
Maričić, Co-agent,
Mrs N.
Jakir,
Mrs I.
Ivanišević, Advisers;
(b) for the applicants
Mrs L.
Kušan,
Mr J.A.
Goldston, Counsel,
Mr A.
Dobrushi,
Mr T.
Alexandridis, Advisers.
The
Court heard addresses by Mr Goldston, Mrs Kušan and Mrs
StaZnik.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born between 1988 and 1994 and live
respectively in Orehovica, Podturen and Trnovec. Their names and
details are set out in the Appendix.
As schoolchildren the applicants at times attended
separate classes, with only Roma pupils, the second to tenth
applicant in primary school in the village of Podturen and the
eleventh to fifteenth applicants in primary school in the village of
Macinec, in Međimurje County. In Croatia primary education
consists of eight grades and children are obliged to attend school
from the age of seven to fifteen. The first four grades are
considered as lower grades and each class is assigned a class teacher
who in principle teaches all subjects. The fifth to eighth grades are
upper grades in which, in addition to a class teacher assigned to
each class, different teachers teach different subjects. The
curriculum taught in any primary-school class, including the
Roma-only classes which the applicants attended, may be reduced by up
to thirty percent in comparison to the regular, full curriculum.
A. General overview of the two primary schools in
question
1. Podturen Primary School
The
proportion of Roma children in the lower grades (from first to fourth
grade) varies from 33 to 36%. The total number of pupils in the
Podturen Primary School in 2001 was 463, 47 of whom were Roma. There
was one Roma-only class, with seventeen pupils, while the remaining
thirty Roma pupils attended mixed classes.
In
2001 a pre-school programme called “Little School” (Mala
škola) was introduced in the Lončarevo settlement in
Podturen. It included about twenty Roma children and was designed as
a preparatory programme for primary school. Three educators were
involved, who had previously received special training. The programme
lasted from 11 June to 15 August 2001. This programme has been
provided on a permanent basis since 1 December 2003. It usually
includes about twenty Roma children aged from three to seven. The
programme is carried out by an educator and a Roma assistant in
cooperation with the Podturen Primary School. An evaluation test was
carried out at the end of the programme.
In
December 2002 the Ministry of Education and Sport adopted a decision
introducing Roma assistants in schools with Roma pupils from first to
fourth grades. However, in the Podturen Primary School a Roma
assistant had already been working since September 2002. A statement
made by one such assistant, Mr K.B., on 13 January 2009 reads:
“I began to work in the Podturen Primary School in
September 2002. At that time there were two classes in the fourth
grade. Class four b) had Roma pupils only and it was very difficult
to work with that class because the pupils were agitated and
disturbed the teaching. I was contemplating leaving after only two
months. At the request of teachers, I would take written invitations
to the parents or I would invite them orally to come to talk with the
teachers at school. Some parents would come, but often not, and I had
to go and ask them again. A lot of time was needed to explain
Croatian words to pupils because some of them continued to speak
Romani and teachers would not understand them. I warned the pupils to
attend school regularly. Some pupils would just leave classes or miss
a whole day. I helped pupils with homework after school. I helped the
school authorities to compile the exact list of pupils in the first
grade. I do not work in the school any longer.”
Since
the school-year 2003/2004 there have been no Roma-only classes in the
Podturen Primary School.
2. Macinec Primary School
The
proportion of Roma children in the lower grades varies from 57 to
75%. Roma-only classes are formed in the lower grades and only
exceptionally in the higher grades. All classes in the two final
grades (seventh and eighth) are mixed. The total number of pupils in
the Macinec Primary School in 2001 was 445, 194 of whom were Roma.
There were six Roma-only classes, with 142 pupils in all, while the
remaining fifty-two Roma pupils attended mixed classes.
Since
2003 the participation of Roma assistants has been implemented.
A
“Little School” pre-school special programme was
introduced in 2006.
B. Individual circumstances of each applicant
The
applicants submitted that they had been told that they had to leave
school at the age of fifteen. Furthermore, the applicants submitted
statistics showing that in the school year 2006/2007 16% of Roma
children aged fifteen completed their primary education, compared
with 91% for the general primary school population in Međimurje
County. The drop-out rate of Roma pupils without completing primary
school was 84%, which was 9.3 times higher than for the general
population. In school year 2005/2006, 73 Roma children were enrolled
in first grade and five in eighth.
The
following information concerning each individual applicant is taken
from official school records.
1. Podturen Primary School
(a) The first applicant
By
a letter of 22 February 2007 the first applicant expressed the wish
to withdraw his application. Thus in the Chamber judgment of 17 July
2008 the Court decided to discontinue the examination of the
application in so far as it concerned the first applicant.
(b) The second applicant
The
second applicant, Mirjana Oršuš, was enrolled in the
first grade of primary school in the school year 1997/98. She
attended a mixed class that year and the following year, but in those
two years she failed to go up a grade. In school years 1999/2000 to
2002/2003 she attended a Roma-only class. In school years 2003/2004
to 2005/2006 she attended a mixed class. In school year 2005/2006 she
took sixth grade for the second time and failed. She failed the first
and the sixth grades twice. Out of seventeen regular parent-teacher
meetings organised during her entire primary schooling, her parents
attended three.
She
was provided with additional classes in Croatian in the fourth grade.
From first to fourth grade she participated in extra-curricular
activities in a mixed group (that is to say a number of different
activities organised for the same group of children), organised by
the school. After reaching the age of fifteen, she left school in
August 2006. Her school report shows that during her schooling she
missed 100 classes without justification.
(c) The third applicant
The
third applicant, Gordan Oršuš, was enrolled in the
first grade of primary school in the school year 1996/1997 and passed
first grade. That and the following year he attended a Roma-only
class. In school year 1998/1999 and 1999/2000 he attended a mixed
class and after that a Roma-only class for the remainder of his
schooling. In school year 2002/2003 he passed fourth grade. He failed
the second grade three times. Out of fifteen regular parent-teacher
meetings organised during his entire primary schooling, his parents
attended two.
He
was not provided with additional classes in Croatian. From first to
fourth grade he participated in extra-curricular activities in a
mixed group organised by the school. After reaching the age of
fifteen he left school in September 2003. His school report shows
that during his schooling he missed 154 classes without
justification.
Later
on he enrolled in evening classes in the People's Open College in
Čakovec, where he completed primary education.
(d) The fourth applicant
The
fourth applicant, Dejan Balog, was enrolled in the first grade of
primary school in the school year 1996/1997. The first and second
year he attended a Roma-only class and the following two years a
mixed class. In school years 2000/2001 to 2002/2003 he attended a
Roma-only class. In school years 2003/2004 to 2005/2006 he attended a
mixed class. In school year 2005/2006 he took fifth grade for the
second time and failed. He failed second grade three times, fourth
grade once and fifth grade twice. Out of eleven regular
parent-teacher meetings organised during his entire primary
schooling, his parents attended two.
He
was not provided with additional classes in Croatian. From first to
fourth grade he participated in extra-curricular activities in a
mixed group organised by the school. After reaching the age of
fifteen, he left school in August 2006. His school report shows that
during his schooling he missed 881 classes without justification.
Later
on he enrolled in fifth-grade evening classes, but did not attend.
(e) The fifth applicant
The
fifth applicant, Siniša Balog, was enrolled in the first grade
of primary school in 1999/2000 and passed first grade. In the school
years 1999/2000 to 2002/2003 he attended a Roma-only class, after
which he attended a mixed class. In the school year 2006/2007 he took
fifth grade for the third time and failed. He failed fourth grade
once and fifth grade three times. Out of eleven regular
parent-teacher meetings organised during his entire primary
schooling, his parents attended one.
He
was not provided with additional classes in Croatian. From first to
fourth grade he participated in extra-curricular activities in a
mixed group organised by the school. After reaching the age of
fifteen, he left school in 2008. His school report shows that during
his schooling he missed 1,304 classes without justification. In
October 2006 the school authorities wrote to the competent Social
Welfare Centre informing them of the applicant's poor school
attendance.
(f) The sixth applicant
The
sixth applicant, Manuela Kalanjoš, was enrolled in the first
grade of primary school in school year 1996/1997 and attended a
Roma-only class. The following two years she attended a mixed class.
In the school years 1999/2000 to 2002/2003 she attended a Roma-only
class and passed fourth grade, after which she attended a mixed
class. From February 2003 she followed an adapted curriculum in her
further schooling on the grounds that a competent expert committee -
the Children's Psycho-physical Aptitude Assessment Board
(Povjerenstvo za utvrđivanje psihofizičkog stanja
djeteta) had established that she suffered from developmental
difficulties. In school year 2004/2005 she took fifth grade for the
second time and failed. She failed first grade three times and fifth
grade twice. Out of eleven regular parent-teacher meetings organised
during her entire primary schooling, her parents attended three.
She
was provided with additional classes in Croatian in her third grade.
From first to fourth grade she participated in extra-curricular
activities in a mixed group organised by the school. After reaching
the age of fifteen, she left school in August 2005. Her school report
shows that during her schooling she missed 297 classes without
justification.
Later
on she enrolled in fifth-grade evening classes, but did not attend.
(g) The seventh applicant
The
seventh applicant, Josip Kalanjoš, was enrolled in the first
grade of primary school in 1999/2000 and attended a Roma-only class
up to and including the school year 2002/2003, after which he
attended a mixed class. From May 2002 he followed an adapted
curriculum in his further schooling on the grounds that a competent
expert committee - the Children's Psycho-physical Aptitude Assessment
Board (Komisija za utvrđivanje psihofizičke sposobnosti
djece) had established that he suffered from developmental
difficulties. In the school year 2007/2008 he took sixth grade for
the second time and failed. He failed the fifth and sixth grades
twice. Out of fifteen regular parent-teacher meetings organised
during his entire primary schooling, his parents attended two.
He
was provided with additional classes in Croatian in third grade in
school year 2001/2002. From first to fourth grade he participated in
extra-curricular activities in a mixed group organised by the school.
After reaching the age of fifteen, he left school in February 2008.
His school report shows that during his schooling he missed 574
classes without justification.
(h) The eighth applicant
The
eighth applicant, Biljana Oršuš, was enrolled in the
first grade of primary school in the school year 1996/1997 and in her
first three school years attended a Roma-only class, after which she
attended a mixed class for two years. On 28 December 2000 the
Međimurje County State Administration Office for Schooling,
Culture, Information, Sport and Technical Culture (Ured za
prosvjetu, kulturu, informiranje, šport i tehničku
kulturu Međimurske Zupanije) ordered that she follow an
adapted curriculum in her further schooling on the grounds that a
competent expert committee – the Children's Psycho-physical
Aptitude Assessment Board – had established that she suffered
from poor intellectual capacity, concentration difficulties and
socio-pedagogical neglect. It was also established that she was in
need of treatment by the competent Social Welfare Centre. In school
years 2001/2002 and 2002/2003 she attended a Roma-only class and
passed fourth grade. In the following two school years she attended a
mixed class, took fifth grade for the second time and failed. She
failed third grade three times and fifth grade twice. Out of seven
regular parent-teacher meetings organised during her entire primary
schooling, her parents attended three.
She
was provided with additional classes in Croatian in third grade in
school year 2001/2002. She participated in extra-curricular
activities in a mixed group organised by the school. After reaching
the age of fifteen, she left school in August 2005. Her school report
shows that during her schooling she missed 1,533 classes without
justification.
(i) The ninth applicant
The
ninth applicant, Smiljana Oršuš, was enrolled in the
first grade of primary school in school year 1999/2000 and attended a
Roma-only class up to and including school year 2002/2003, after
which she attended a mixed class. In 2006/2007 she took fifth grade
for the third time and failed. She failed the fourth grade once and
the fifth grade three times. Out of eleven regular parent-teacher
meetings organised during her entire primary schooling, her parents
attended three.
She
was provided with additional classes in Croatian in third grade in
school year 2001/2002. From first to fourth grade she participated in
extra-curricular activities in a mixed group organised by the school.
After reaching the age of fifteen, she left school in August 2007.
Her school report shows that during her schooling she missed 107
classes without justification.
(j) The tenth applicant
The
tenth applicant, Branko Oršuš, was enrolled in the
first grade of primary school in the school year 1997/1998 and
attended a mixed class for the first two years. From 1999/2000 to
2002/2003 he attended a Roma-only class, after which he attended a
mixed class. On 23 February 2005 the Međimurje County State
Welfare Department ordered that he follow an adapted curriculum in
his further schooling on the ground that a competent expert committee
– the Children's Psycho-physical Assessment Board – had
established that he suffered from developmental difficulties. In
school year 2005/2006 he failed sixth grade. He failed first grade
twice and fourth and sixth grade once. Out of eleven regular
parent-teacher meetings organised during his entire primary
schooling, his parents attended one.
He
was provided with additional classes in Croatian in third grade in
school year 2001/2002. He participated in extra-curricular activities
in a mixed group organised by the school. After reaching the age of
fifteen, he left school in August 2006. His school report shows that
during his schooling he missed 664 classes without justification.
2. Macinec Primary School
(a) The eleventh applicant
The
eleventh applicant, Jasmin Bogdan, was enrolled in the first grade of
primary school in the school year 1997/1998. The preliminary tests
carried out before his assignment to a particular class showed that
he did not understand the Croatian language. He scored 15 out of 97
points, or 15.5%. He was therefore assigned to a Roma-only class,
where he stayed during his entire schooling. In the school year
2004/2005 he took fifth grade for the second time and failed. He
failed first and the fourth grades once and fifth grade twice. Out of
twenty-four parent-teacher meetings organised during his entire
primary schooling, his parents attended none.
He
was provided with additional classes in Croatian in third grade in
school year 2001/2002. After reaching the age of fifteen, he left
school in August 2005. His school report shows that during his
schooling he missed 1,057 classes without justification.
(b) The twelfth applicant
The
twelfth applicant, Josip Bogdan, was enrolled in the first grade of
primary school in 1999/2000. The preliminary tests carried out before
his assignment to a particular class showed that he did not
understand the Croatian language. He scored 8 out of 97 points, or
8.25%. He was therefore assigned to a Roma-only class, where he
stayed during his entire schooling. In school year 2006/2007 he took
third grade for the second time and failed. He failed first grade
once, second grade three times and third grade twice. Out of
thirty-seven regular parent-teacher meetings organised during his
entire primary schooling, his parents attended none.
He
was provided with additional classes in Croatian in first, second and
third grade. In second grade he participated in a dancing group and
in third grade in a choir. After reaching the age of fifteen, he left
school in August 2007. His school report shows that during his
schooling he missed 1,621 classes without justification.
(c) The thirteenth applicant
The
thirteenth applicant, Dijana Oršuš, was enrolled in the
first grade of primary school in the school year 2000/2001. The
preliminary tests carried out before her assignment to a particular
class showed that she had inadequate knowledge of the Croatian
language. She scored 26 out of 97 points, or 26.8%. She was therefore
assigned to a Roma-only class, where she stayed during her entire
schooling. In the school year 2007/2008 she passed fifth grade. She
failed first grade twice and second grade once. Out of thirty-two
regular parent-teacher meetings organised during her entire primary
schooling, her parents attended six.
She
was provided with additional classes in Croatian in first grade. In
first grade she participated in a mixed group and in fifth grade in a
choir. After reaching the age of fifteen, she left school in August
2008. Her school report shows that during her schooling she missed
522 classes without justification.
(d) The fourteenth applicant
The
fourteenth applicant, Dejan Oršuš, was enrolled in the
first grade of primary school in school year 1999/2000. The
preliminary tests carried out before his assignment to a particular
class showed that he did not understand the Croatian language. He
scored 15 out of 97 points, or 15.5%. He was therefore assigned to a
Roma-only class, where he stayed during his entire schooling. In
2005/2006 he passed third grade. He failed first grade three times
and third grade once. Out of twenty-eight regular parent-teacher
meetings organised during his entire primary schooling, his parents
attended five.
He
was provided with additional classes in Croatian in first grade.
After reaching the age of fifteen, he left school in August 2006. His
school report shows that during his schooling he missed 1,033 classes
without justification.
(e) The fifteenth applicant
The
fifteenth applicant, Danijela Kalanjoš, was enrolled in the
first grade of primary school in the school year 2000/2001. The
preliminary tests carried out before her assignment to a particular
class showed that her understanding of the Croatian language was
poor. She scored 37 out of 97 points, or 38.14%. She was therefore
assigned to a Roma-only class, where she stayed during her entire
schooling. In the school year 2007/2008 she passed fifth grade. She
failed first grade twice and second grade once. Out of twenty-one
regular parent-teacher meetings organised during her entire primary
schooling, her parents attended two.
She
was provided with additional classes in Croatian in first grade. In
first grade she participated in a mixed group, in second grade in
dancing, in third grade in handicraft and in fifth grade in a choir.
After reaching the age of fifteen, she left school in August 2008.
Her school report shows that during her schooling she missed 238
classes without justification.
C. Proceedings before the national courts
On
19 April 2002 the applicants brought an action under section 67 of
the Administrative Disputes Act in the Čakovec Municipal Court
(Općinski sud u Čakovcu) against the above-mentioned
primary schools and the Kuršanec Primary School, the State and
Međimurje County (“the defendants”). They submitted
that the teaching organised in the Roma-only classes formed in the
schools in question was significantly reduced in volume and in scope
compared to the officially prescribed curriculum. The applicants
claimed that the situation described was racially discriminating and
violated their right to education as well as their right to freedom
from inhuman and degrading treatment. They requested the court to
order the defendants to refrain from such conduct in the future.
The
applicants also produced the results of a psychological study of Roma
children attending Roma-only classes in Međimurje, carried out
immediately before their action was lodged, showing the following:
-
most children had never had a non-Roma child as a friend;
-
86.9% expressed a wish to have a non-Roma child for a friend;
-
84.5% expressed a wish to attend a mixed class;
- 89%
said they felt unaccepted in the school environment;
- 92%
stated that Roma and non-Roma children did not play together.
Furthermore,
the report asserted that segregated education produced emotional and
psychological harm in Roma children, in terms of lower self-esteem
and self-respect and problems in the development of their identity.
Separate classes were seen as an obstacle to creating a social
network of Roma and non-Roma children.
The
defendants each submitted replies to the arguments put forward by the
applicants, claiming that there was no discrimination of Roma
children and that pupils enrolled in school were all treated equally.
They submitted that all pupils were enrolled in school after a
committee (composed of a physician, a psychologist, a school
counsellor (pedagog), a defectologist and a teacher) had given
an opinion that the candidates were physically and mentally ready to
attend school. The classes within a school were formed depending on
the needs of the class, the number of pupils, etc. In particular, it
was important that classes were formed in such a way that they
enabled all pupils to study in a stimulating environment.
Furthermore,
the defendants submitted that pupils of Roma origin were grouped
together not because of their ethnic origin, but rather because they
often did not speak Croatian well and it took more exercises and
repetitions for them to master the subjects taught. Finally, they
claimed that Roma pupils received the same quality of education as
other pupils as the scope of their curriculum did not differ from
that prescribed by law.
On
26 September 2002 the Čakovec Municipal Court dismissed the
applicants' action, accepting the defendants' argument that the
reason why most Roma pupils were placed in separate classes was that
they were not fluent in Croatian. Consequently, the court held that
this was not unlawful and that the applicants had failed to
substantiate their allegations concerning racial discrimination.
Lastly, the court concluded that the applicants had failed to prove
the alleged difference in the curriculum of the Roma-only classes.
On
17 October 2002 the applicants appealed against the first-instance
judgment, claiming that it was arbitrary and contradictory.
On
14 November 2002 the Čakovec County Court (Zupanijski sud u
Čakovcu) dismissed the applicants' appeal, upholding the
reasoning of the first-instance judgment.
Subsequently,
on 19 December 2002, the applicants lodged a complaint with the
Constitutional Court (Ustavni sud Republike Hrvatske) under
section 62 of the Constitutional Court Act. In their constitutional
complaint the applicants reiterated their earlier arguments, relying
on the relevant provisions of the Constitution and of the Convention.
On
3 November 2003 the applicants' lawyer lodged an application with the
Constitutional Court to expedite the proceedings. On 7 February 2007
the Constitutional Court dismissed the applicants' complaint in its
decision no. U-III- 3138/2002, published in the Official Gazette no.
22 of 26 February 2007. The relevant parts of the decision read as
follows:
“The first-instance court established in the
impugned judgment that the criteria for formation of classes in the
defendant primary schools had been knowledge of the Croatian language
and not the pupils' ethnic origin. The [first-instance] court
considered that the complainants had failed to prove their assertion
that they had been placed in their classes on the basis of their
racial and ethnic origin. The [first-instance] court stressed that
the complainants relied exclusively on the Report on the activities
of the Ombudsman in the year 2000. However, the Ombudsman said in his
evidence that the part of the Report referring to the education of
Roma had been injudicious because all the relevant facts had not been
established.
The first-instance court relied on section 27 paragraph
1 of the Primary Education Act ... which provides that teaching in
primary schools is in the Croatian language and Latin script, and
considered lack of knowledge of the Croatian language as an objective
impediment in complying with the requirements of the school
curriculum, which also transpires from the conclusion of a study
carried out for the needs of the Croatian Helsinki Committee. The
[first-instance] court found: 'pupils enrolling in the first year of
primary schools have to know the Croatian language, so that they are
able to follow the teaching, if the purpose of primary education is
to be fulfilled. It is therefore logical that classes with children
who do not know the Croatian language require additional efforts and
commitment of teachers, in particular to teach them the Croatian
language.'
The first-instance court found that the defendants had
not acted against the law in that they had not changed the
composition of classes once established, as only in exceptional
situations was the transfer of pupils from one class to another
allowed. The [first-instance] court considered that this practice
respected the integrity of a class and its unity in the upper grades.
The [first-instance] court considered that classes
should be formed so as to create favourable conditions for an equal
approach to all pupils according to the prescribed curriculum and
programme, which could be achieved only where a class consisted of a
permanent group of pupils of approximately the same age and
knowledge.
Furthermore, the [first-instance] court found that the
complainants had failed to prove their assertion that ... they had a
curriculum of significantly smaller volume than the one prescribed
for primary schools by the Ministry of Education and Sport on 16 June
1999. The [first-instance] court found that the above assertion of
the complainants relied on the Ombudsman's report. However, the
Ombudsman said in his testimony that he did not know how the fact
that in Roma-only classes the teaching followed a so-called special
programme had been established.
The [first-instance] court established that teaching in
the complainants' respective classes and the parallel ones followed
the same curriculum. Only in the Krušanec Primary School were
there some deviations from the school curriculum, but the
[first-instance] court found those deviations permissible since they
had occurred ... at the beginning of the school year owing to low
attendance.
After having established that the complainants had not
been placed in their classes according to their racial and ethnic
origin and that the curriculum had been the same in all parallel
classes, the first-instance court dismissed the complainants' action.
...
The reasoning of the first-instance judgment ... shows
that the defendant primary schools replied to the complainants'
allegations as follows:
'The [defendant schools] enrolled in the first year
those children found psycho-physically fit to attend primary school
by a committee composed of a physician, a psychologist, a school
counsellor (pedagog), a defectologist and a teacher. They did
not enrol Croatian children or Roma children as such, but children
found by the said committee to be psychologically and physically fit
to be enrolled in primary school. ... The defendant primary schools
maintain that the first obstacle for Roma children in psychological
tests is their lack of knowledge of the Croatian language in terms of
both expression and comprehension. As to the emotional aspect of
maturity, these children mostly have difficulty channelling their
emotions. In terms of social maturity, children of Roma origin do not
have the basic hygienic skills of washing, dressing, tying or
buttoning, and a lot of time is needed before they achieve these
skills. ... It is therefore difficult to plan class structures with
sufficient motivation for all children, which is one of the
obligations of primary schools. There are classes composed of pupils
not requiring additional schooling to follow the teaching programme
and classes composed of pupils who require supplementary work and
assistance from teachers in order to acquire the necessary [skills]
they lack owing to social deprivation. ...'
The reasoning of the same judgment cites the testimony
of M.P.-P., a school counsellor and psychologist in the Macinec
Primary School, given on 12 December 2001 ...
'Before enrolment the committee questions the children
in order to establish whether they possess the skills necessary for
attending school. Classes are usually formed according to the Gauss
curve, so that the majority in a given class are average pupils and a
minority below or above average. ... However, in a situation where
70% of the population does not speak Croatian, a different approach
is adopted so as to form classes with only pupils who do not speak
Croatian, because in those classes a teacher's first task is to teach
the children the language.'
The above shows that the allocation of pupils to classes
is based on the skills and needs of each individual child. The
approach is individualised and carried out in keeping with
professional and pedagogical standards. Thus, the Constitutional
Court finds the approach applied correct since only qualified
experts, in particular in the fields of pedagogy, school psychology
and defectology, are responsible for assigning individual children to
the appropriate classes.
The Constitutional Court has no reason to question the
findings and expert opinions of the competent committees, composed of
physicians, psychologists, school counsellors (pedagog),
defectologists and teachers, which in the instant case found that the
complainants should be placed in separate classes.
None of the facts submitted to the Constitutional Court
leads to the conclusion that the placement of the complainants in
separate classes was motivated by or based on their racial or ethnic
origin.
The Constitutional Court finds that their placement
pursued the legitimate aim of necessary adjustment of the primary
educational system to the skills and needs of the complainants, where
the decisive factor was their lack of knowledge or inadequate
knowledge of Croatian, the language used to teach in schools.
The separate classes were not established for the
purpose of racial segregation in enrolment in the first year of
primary school but as a means of providing children with
supplementary tuition in the Croatian language and eliminating the
consequences of prior social deprivation.
It is of particular importance to stress that the
statistical data on the number of Roma children in separate classes
in the school-year 2001-2002 ... are not in themselves sufficient to
indicate that the defendants' practice was discriminatory (see also
the European Court of Human Rights judgments Hugh Jordan v. the
United Kingdom, no. 24746/94, § 154, and D.H.
and Others v. the Czech Republic, § 46).
Moreover, the complainants themselves maintain in their
constitutional complaint that in the school-year 2001-2002 40.93% of
Roma children in Međimurje County were placed in regular
classes, which tends to support the Constitutional Court's conclusion
that there is no reason to challenge the correct practice of the
defendant primary schools and expert committees.
...
In their constitutional complaint the complainants
further point out that: 'Even if lack of knowledge of the Croatian
language on enrolment in the first year was a problem, the same could
not be said of the complainants' enrolment in upper grades.' They
therefore consider that their rights were violated by the courts'
findings that it had been justified to maintain separate [Roma-only]
classes in the upper grades in order to preserve the stability of the
wholeness of a given class. The complainants submit that the
stability of a class should not have been placed above their
constitutional rights, multiculturalism and national equality.
In that regard the Constitutional Court accepts the
complainants' arguments.
While the Constitutional Court considers correct and
acceptable the courts' findings that lack of knowledge of the
Croatian language represents an objective obstacle justifying the
formation of separate classes for children who do not speak Croatian
at all or speak it badly when they start school, ... bearing in mind
the particular circumstance of the present case, it cannot accept the
following conclusion of the first-instance court:
'Furthermore, the integrity and unity of a class is
respected in the upper grades. Therefore, transfer of children from
one class to another occurs only exceptionally and in justified cases
... because a class is a homogeneous whole and transferring children
from one class to another would produce stress. ... The continuity of
a group is a precondition for the development of a class collective
...'
Accordingly, the Constitutional Court cannot accept the
following view of the appellate court:
'The classes are formed when the children enter the
first year of their schooling, not every year, and their composition
changes only exceptionally. They become a settled whole which makes
for work of a higher quality and it is not pedagogically justified to
change them. Therefore this court, like the first-instance court,
concludes that maintaining established classes did not amount to an
unlawful act.'
The above views of the courts would have been acceptable
had they referred to the usual situations concerning the assignment
of pupils to upper grade classes in primary schools where no
objective need for special measures existed, such as forming separate
classes for children with inadequate command of Croatian.
Considering the circumstances of the present case, the
Constitutional Court finds that it is in principle objectively and
reasonably justified to maintain separate classes in the upper grades
of primary school only for pupils who have not attained the level of
Croatian necessary for them to follow the school curriculum of
regular classes properly. ...
However, there is no objective or reasonable
justification for not transferring to a regular class a pupil who has
attained proficiency in Croatian in the lower grades of primary
school and successfully mastered the prescribed school curriculum.
...
Keeping such a pupil in a separate class against his or
her will ... for reasons unrelated to his or her needs and skills
would be unacceptable from the constitutional point of view with
regard to the right of equality before the law, guaranteed under
Section 14 paragraph 2 of the Constitution.
...
... a constitutional complaint is a particular
constitutional instrument for the protection of a legal subject whose
human right or fundamental freedom guaranteed under the Constitution
has been infringed in an individual act of a State or public body
which determined his or her rights and obligations.
The present constitutional complaint concerns impugned
judgments referring to the school year 2001/2002. However, not a
single complainant alleges that in that school year he or she was a
pupil in a separate [Roma-only] upper-grade class or was personally
affected or concerned by the contested practice ...
Although it does not concern the individual legal
position of any of the complainants ..., in respect of the
complainants' general complaint about the maintaining of Roma-only
classes in the upper grades of primary school the Constitutional
Court has addressed the following question:
- was the continued existence of Roma-only classes in
the upper grades of primary school ... caused by the defendants'
intent to discriminate those pupils on the basis of their racial or
ethnic origin?
... none of the facts submitted to the Constitutional
Court leads to the conclusion that the defendants' ... practice was
aimed at discrimination of the Roma pupils on the basis of their
racial or ethnic origin.
...
The complainants further complain of a violation of
their right to education on the ground that the teaching organised in
those classes was more reduced in volume and in scope than the
Curriculum for Primary Schools adopted by the Ministry of Education
and Sport on 16 June 1999. They consider that 'their placement in
Roma-only classes with an inferior curriculum stigmatises them as
being different, stupid, intellectually inferior and children who
need to be separated from normal children in order not to be a bad
influence on them. Owing to their significantly reduced and
simplified school curriculum their prospects of higher education or
enrolment in high schools as well as their employment options or
chances of advancement are slimmer ...'
After considering the entire case-file, the
Constitutional Court has found that the above allegations are
unfounded. The case-file, including the first-instance judgment ...,
shows that the allegations of an inferior curriculum in Roma-only
classes are not accurate. The Constitutional Court has no reason to
question the facts as established by the competent court.
The possible difference in curricula between parallel
classes for objective reasons (for example the low attendance at the
Krušanec Primary School, where in the first term of school
year 2001/2002 the pupils in classes 1c,, 1d, 2b and 2c missed 4,702
lessons in total, 4,170 of which were missed for no justified reason)
does not contravene the requirement that the curriculum be the same
in all parallel classes.
The Constitutional Court is obliged to point out that
neither the Constitution nor the Convention guarantees any specific
requirements concerning school curricula or their implementation.
First and foremost the Constitution and the Convention guarantee a
right of access to educational institutions existing in a given
State, as well as an effective right to education, in other words
that every person has an equal right to obtain official recognition
of the studies which he or she has completed (a similar view was
expressed by the European Court of Human Rights in a case relating to
certain aspects of the laws on the use of languages in education in
Belgium v. Belgium). ...
... the Constitutional Court finds the evidence
submitted in the present proceedings insufficient to show beyond
doubt that the complainants had to follow a school curriculum of
lesser scope. ...
Thus, the Constitutional Court considers the
complainants' assertion about being stigmatised as a subjective value
judgment, without reasonable justification. The Constitutional Court
finds no factual support for the complainants' assertion that the
source of their stigmatisation was an allegedly reduced curriculum
owing to which their prospects for further education were lower, and
dismisses that assertion as arbitrary. The competent bodies of the
Republic of Croatia recognises the level of education a person has
completed irrespective of his or her racial or ethnic origin. In that
respect everyone is equal before the law, with equal chances of
advancement according to their abilities.”
II. RELEVANT DOMESTIC LAW
A. The Constitution
Article
14 of the Constitution reads:
“Everyone in the Republic of Croatia shall enjoy
rights and freedoms, regardless of race, colour, gender, language,
religion, political or other belief, national or social origin,
property, birth, education, social status or other characteristics.
All shall be equal before the law.”
B. The Constitutional Court Act
The
relevant part of section 62 of the Constitutional Act on the
Constitutional Court (Ustavni zakon o Ustavnom sudu Republike
Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the
Constitutional Court Act”) reads:
“1. Everyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that the individual
act of a state body, a body of local and regional self-government, or
a legal person with public authority, which decided about his or her
rights and obligations, or about suspicion or accusation of a
criminal act, has violated his or her human rights or fundamental
freedoms, or his or her right to local and regional self-government
guaranteed by the Constitution (hereinafter: constitutional right)...
2. If another legal remedy exists against the violation
of the constitutional right [complained of], the constitutional
complaint may be lodged only after that remedy has been exhausted.
3. In matters in which an administrative action or, in
civil and non-contentious proceedings, an appeal on points of law is
allowed, remedies are exhausted only after the decision on these
legal remedies has been given.”
C. The Administrative Disputes Act
Section
67 of the Administrative Disputes Act (Zakon o upravnim sporovima,
Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides for
special proceedings for the protection of constitutional rights and
freedoms from unlawful acts of public officials, specifically that an
action can be brought if the following conditions are met: (a) an
unlawful action has already taken place, (b) such action is the
work of a government official/body/agency or another legal entity,
(c) the action resulted in a violation of one or more of the
plaintiff's constitutional rights, and (d) the Croatian legal
system does not provide for any other avenue of redress.
D. The Primary Education Act
The
relevant provisions of the Primary Education Act (Zakon o osnovnom
školstvu, Official Gazette nos. 59/1990, 26/1993, 27/1993,
29/1994, 7/1996, 59/2001, 114/2001 and 76/2005) read:
Section 2
“The purpose of primary education is to enable a
pupil to acquire knowledge, skills, views and habits necessary for
life and work or further education.
A school is obliged to ensure continuous development of
each pupil as a spiritual, physical, moral, intellectual and social
being in accordance with her or his abilities and preferences.
The aims of primary education are:
- to arouse and cultivate in pupils an interest and
independence in learning and problem solving as well as creativity,
moral consciousness, aesthetic tastes and criteria, self-esteem and
responsibility towards the self and nature, social, economic and
political awareness, tolerance and ability to co-operate, respect for
human rights, achievements and aspirations;
- to teach literacy, communication, calculation,
scientific and technological principles, critical observation,
rational argumentation, understanding of the life we live and
understanding of the interdependence of people and nature,
individuals and nations.
The aims and tasks of primary education shall be
realised according to the established teaching plans and programmes.”
Section 3
“Primary education lasts at least eight years.
Primary education is in principle mandatory for all
children from six to fifteen years of age”
III. COUNCIL OF EUROPE REPORTS CONCERNING CROATIA
A. The European Commission against Racism and
Intolerance (ECRI)
1. The first report on Croatia, published on 9 November
1999
The
relevant part of the report concerning the situation of Roma reads:
“32. Overall, Roma/Gypsy are reported
to continue to face societal discrimination and official inaction
when complaints are filed. Progress has been made in the fields of
education and public awareness, through the publication of studies on
the subject of Romani education, initiatives related to the
organisation and financing of education of Roma children, training of
Roma teachers, and public forums on the difficulties faced by
Roma/Gypsy society. The authorities are encouraged to give further
support to such initiatives, taking into account ECRI's general
policy recommendation No. 3 on combating racism and intolerance
against Roma/Gypsies. ...”
2. The second report on Croatia, published on 3 July
2001
The relevant part of this report reads:
“Access to education
41. Education of Roma/Gypsy children is a
serious problem in Croatia. Many Roma/Gypsy children do not go to
school, having either dropped out or having never attended. According
to Roma/Gypsy representatives, there are regions where not a single
Roma/Gypsy child attends school. ECRI understands that the reasons
for this situation are complex, and there is no easy solution,
however emphasises the need to increase the participation of
Roma/Gipsy children at all levels of education. The Croatian
authorities are encouraged to make special efforts in this regard.
42. ECRI wishes to draw attention to its
General Policy Recommendation No. 3 on combating racism and
intolerance against Roma/Gypsies, where the existence of
discrimination in explaining the process of social exclusion is
highlighted. An investigation should be carried out into the role of
stereotypes and prejudices of teachers, which may lead to low
expectations for Roma/Gypsy children. ECRI recommends, in this
respect, that training be offered to teachers, including information
about the particular needs and expectations of Roma/Gypsies and the
ability to use this knowledge effectively. As insufficient knowledge
of the Croatian language upon entry to classes may also present an
obstacle, ECRI emphasises the importance of preparatory classes,
additional training in the Croatian language and increased
opportunities to study the Roma language in the early years of
schooling, which might assist Roma/Gypsy children in integrating into
the educational system. ECRI notes with interest initiatives such as
the “Programme for Including Roma children in the Education
System of the Republic of Croatia”, launched in 1998, and
encourages the authorities in their efforts to continue to develop
and implement appropriate measures in co-operation with Roma
associations. Roma/Gypsy organisations have highlighted the
connection between poverty, poor living conditions and school
attendance. The Croatian authorities might consider creating special
assistance programmes for Roma./Gypsy and other children from
extremely poor families who may find the costs of textbooks, other
school materials and proper school dress prohibitive.”
3. The third report on Croatia, published on 17
December 2004
The
relevant part of this report reads:
“Education
and awareness raising
83. ECRI is concerned to learn that
schoolbooks sometimes convey negative images of certain minority
groups, particularly ... Roma.
...
Situation of the Roma community in Croatia
...
137. ECRI is pleased to learn that in October
2003 the government adopted a National Programme for the Roma which
aims to resolve many of the difficulties encountered by Roma in their
day-to-day lives. The programme is based on the observation that Roma
are largely marginalised in social and public activities and
experience worse living conditions than the average majority
population and other minorities. The programme aims to abolish all
forms of discrimination, violence, stereotyping and prejudice against
Roma, while ensuring that they do not lose their own identity,
culture or traditions. In order to achieve this aim, the programme
sets out a series of measures in areas such as access to citizenship,
education, housing, access to public services and relations with the
police. In 2004, a commission made up of government representatives,
Roma and NGO representatives was set up to monitor the programme and
develop a joint action plan for the different ministries. A number of
measures have already been taken, such as the training of Roma as
assistants in schools or as police officers and the training of young
Roma at seminars on participation in public life. ... However,
implementation of the programme has not really got off the ground yet
and NGOs are critical of the lack of budgetary resources provided,
though these are essential to the success of such a programme. The
programme must be regarded as positive, although in ECRI's view it
does not sufficiently emphasise the part played by stereotyping and
prejudice against Roma, both among the population and among
representatives of the public authorities, in the difficulties
encountered by this community. ECRI also notes with interest that the
Government is in the process of adopting a National Action Plan for
Roma, which proposes a wide range of measures to improve the
situation of Roma.
Access to education for Roma children
141. In its second report on Croatia, ECRI
recommended that the Croatian authorities make special efforts to
increase the participation of Roma children at all levels of
education.
142. The authorities have taken measures to
facilitate Roma children's access to education, such as setting up
nursery school classes enabling them to learn Croatian, training
teachers in Roma culture and training young Roma as assistants in
schools. Some Roma now receive state grants to enrol in university.
However, as they are very recent and applied on a small scale these
measures are not enough to offset the fact that Roma children are
very much behind in terms of equal opportunities in education. Many
Roma children leave school at a very early age. They do not always
have access to education in their mother tongue and their own culture
in schools, in spite of the legislation on the rights of national
minorities which provides for this possibility. The authorities have
explained to ECRI that this is because the Roma have not asked for it
themselves and because the Romani language is not standardised, with
several Romani dialects in Croatia. However, some Roma
representatives have expressed the wish that the school curriculum
for Roma children should include teaching of their mother tongue and
Roma culture, though they also emphasise the importance of learning
Croatian.
143. ECRI is particularly concerned by
allegations that separate classes solely for Roma children exist
alongside classes for non-Roma children in some schools in the
Medjimurje region. According to several NGOs, including the European
Roma Rights Centre, education in the classes set aside for Roma
children is of poorer quality than in the other classes. According to
the authorities, however, the sole reason why there are still classes
comprising only Roma children is the de facto segregation which they
face where housing is concerned, since Roma are sometimes in the
majority in some areas. Nevertheless, this explanation does not
provide a response to allegations that when the authorities tried to
introduce mixed classes instead of separate classes in some schools,
they came up against opposition from the non-Roma parents, who
apparently signed petitions against this measure, with the result
that the separate classes were maintained. ECRI notes that
proceedings for racial segregation are pending before the national
courts in this connection.
Recommendations:
144. ECRI urges the Croatian authorities to
take measures without delay to improve equal opportunities for Roma
children in education. It stresses the paramount importance of
elaborating a short-, medium- and long-term policy in the matter and
providing sufficient funds and other resources to implement this
policy. In particular, it should be made easier for Roma children to
learn Croatian while also allowing those who so wish to be taught
their Romani dialect and Roma culture.
145. ECRI encourages the Croatian authorities
to conduct an in-depth investigation into the allegations that
segregation is practised between Roma and non-Roma children in some
schools and to rapidly take all the necessary measures, where
appropriate, to put an end to such situations.
146. ECRI reiterates its recommendations that
a study be carried out on the influence of stereotyping and
prejudices among teachers, which may lead to low expectations of Roma
children. It encourages all measures designed to educate teachers
about Roma culture.”
B. Advisory Committee on the Framework Convention for
the Protection of National Minorities
1. Opinion on Croatia adopted on 6 April 2001
The
relevant part of the opinion reads:
“Article
4
...
28. The Advisory Committee finds that Croatia
has not been able to secure full and effective equality between the
majority population and Roma and that the situation of Roma remains
difficult in such fields as employment, housing and education. It
appears, however, that Roma issues have recently received increasing
attention from the central authorities. The Advisory Committee finds
it important that this commitment increases the vigour with which
sectoral projects for Roma, such as the ones in the field of
education (see also comments under Article 12) , are pursued and
leads to the development, in consultations with Roma, of more
comprehensive programmes and strategies to address the concerns of
this national minority.
...
Article 12
...
49. While recognising that there appears to
be no large-scale separation of Roma children within the educational
system of Croatia, the Advisory Committee is highly concerned about
reports that in certain schools, Roma children are placed in separate
classes and school facilities are organised and operated in a manner
that appears to stigmatise Roma pupils. The Advisory Committee
stresses that placing children in separate classes should take place
only when it is absolutely necessary and always on the basis of
consistent, objective and comprehensive tests. The Advisory Committee
supports the efforts of the office of the Ombudsman to review this
situation with a view to ensuring that Roma children have equal
access to, and opportunities to continue to attend, regular classes.
The Advisory Committee is aware of the reservations expressed by some
Roma with respect to the integration of Roma pupils in regular
classes and supports efforts to involve Roma parents and Roma
organisations in the process aimed at remedying the current
situation. The Advisory Committee considers that a key to reaching
this aim is to secure that the educational system reflects and takes
fully into account the language and culture of the minority
concerned, as stipulated in the principles contained in the Committee
of Ministers;' Recommendation No.(2000)4 on the education of
Roma/Gypsy children in Europe. The Advisory Committee notes that the
Government of Croatia adopted in July 1998 a “Programme of
Integration of Roma Children in the Educational and School System”
which contains a number of useful ideas in this respect. The text of
the Programme appears however rather cursory in nature, and the
Advisory Committee considers that Croatia needs to develop, implement
and evaluate further its measures aimed at improving the status of
Roma in the educational system.
...
V. PROPOSAL FOR CONCLUSIONS AND RECOMMENDATIONS BY
THE COMMITTEE OF MINISTERS
...
In respect of Article 12
...
The Committee of Ministers concludes that in
certain schools in Croatia, Roma children are reportedly placed in
separate classes, and school facilities are organised and operated in
a manner that appears to stigmatise Roma pupils. The Committee of
Ministers recommends that this question be reviewed, and
necessary measures taken, with a view to ensuring that Roma children
have equal access to, and opportunities to continue to attend,
regular classes, bearing in mind the principles contained in the
Committee of Ministers' Recommendation No.(2000)4 on education of
Roma/Gypsy children in Europe.”
2. Comments submitted by the Croatian Government on 26
September 2001
The
relevant part of the comments reads:
“Articles 12 and 14
...
The education of Roma is a serious problem caused by
their way of life and their attitude towards the system, laws, rights
and obligations of citizens and requires particular efforts and
solutions. The Croatian Ministry of Education and Sports, in
cooperation with the other ministries and state institutions, local
administration and self-government, as well as non-governmental
organisations, has initiated programmes to resolve this issue at two
levels:
a) Programme of integration of the Roma population into
the educational system of the Republic of Croatia.
b) Exercise of minority rights aimed at preserving their
mother tongue and culture.
Regarding pre-school education, the Ministry of
Education and Sports, in cooperation with non-governmental
organisations, initiated a programme for the inclusion of Roma
children and their families, notably mothers, into the system, but
only on a voluntary basis, while at the moment there are no effective
mechanisms of obligatory inclusion.
At the level of primary and secondary education, Roma
children attend classes together with other children. Those children
who do not speak the Croatian language may well be enrolled in
special classes where they receive special attention with a view to
learning the Croatian language. This practice is implemented only in
the first and second grade of primary school, after which children
attend classes together with children of other nationalities.
Although this practice has yielded some positive results, priority is
given to the organisation of pre-school preparation to help Roma
children to overcome the language barrier, learn the basic rules of
school conduct, hygienic habits and needs, and strengthen the feeling
of affiliation and security in the school environment. The Ministry
of Education and Sports, in cooperation with the local
administration, has taken a number of measures for this purpose –
additional assistance to overcome problems concerning the following
and comprehension of school lessons, adaptation of curricula to the
needs of Roma children, granting of accommodation for Roma pupils
(attending secondary schools), follow up to the process of inclusion,
assisting in the preparation of young Roma for the profession of
teachers and trainers, providing free school meals and bus transport
to and from school and so forth.”
3. Second Opinion on Croatia adopted on 1 October 2004
The
relevant part of the opinion reads:
“ARTICLE 12 OF THE FRAMEWORK CONVENTION
...
Education of Roma children and contacts amongst
pupils from different communities
...
Present situation
a) Positive developments
128. The authorities seem to be increasingly
sensitive to the problems of Roma children in education and have
launched new initiatives, including at the pre-school level, which
are aimed at improving the situation and attendance of Roma children
in schools. The National Programme for the Roma details a number of
laudable measures that could help to further the protection of the
Roma in the educational system, such as the employment of Roma
assistant teachers in regular classes and provision of free meals for
children.
b) Outstanding issues
129. The placing of Roma children in separate
classes appears to be increasingly rare in Croatia, but this
practice, which has been challenged in pending legal cases, continues
in some schools in Medjimurje county. The National Programme for the
Roma also endorses the idea of separate first-grade Roma-only classes
for those who have not attended pre-school and are not proficient in
the Croatian language. Such classes do not appear to be set up to
foster teaching in or of Roma language or other elements of Roma
culture, but rather to assist the children to obtain basic Croatian
language and other skills so that they can meet the demands of the
educational system. While recognising that these are valuable aims,
the Advisory Committee considers that pupils should not be placed in
such separate remedial classes on the basis of their affiliation with
a national minority but rather on the basis of the skills and needs
of the individuals concerned, and where such placing is found
necessary, it should be for a limited period only.
...
Recommendations
131. Croatia should fully implement the
valuable educational initiatives contained in the National Programme
of the Roma, including those promoting increased attendance of Roma
children in pre-schools. The envisaged remedial first-grade classes
should, however, not be conceived a priori as Roma classes,
but as classes in which individuals are placed on the basis of their
skills and needs, regardless of their ethnicity.
...”
4. Comments submitted by the Croatian Government on 13
April 2005
The relevant part of the comments reads:
“Education
of Roma children and contacts amongst pupils from different
communities
The programme of pre-school education is intended to
encompass as large a number of Roma children as possible and thus
create the precondition for their successful entrance into the
primary education system. The Ministry of Science, Education and
Sports has also supported the establishment of kindergartens for Roma
children in cooperation with Roma NGOs, international organisations
and local authorities. The responsible bodies are also helping with
the enrolment of Roma pupils in institutions of secondary and higher
education and are providing student grants.
By increasing the number of Roma children in pre-school
education, conditions are created for their enrolment in regular
primary schools.”
C. Commissioner for Human Rights
1. Report by Mr Alvaro Gil-Roberts, Commissioner for
Human Rights, on his visit to the Republic of Croatia, 14-16 June
2004
The
relevant part of the report reads:
“III.
Situation of the Roma community
...
27. In spite of non-discrimination on a legal plane, the
treatment meted out to the Roma minority still raises anxieties since
this population continues to undergo social and economic
discrimination. It should nevertheless be observed that efforts have
been undertaken in institutional matters especially, the Government
having set up a National Council of Roma chaired by the Deputy Prime
Minister. Locally, and around Međimurje in particular, most
districts have had water and electricity connected and are served by
school transport.
...
A. Segregation in schools
30. The year 2002 saw the worsening of problems around
the town of Čakovec which applied a practice of separating Roma
and non-Roma pupils in schools. An atmosphere of intolerance took
hold; non-Roma parents went so far as to stage a demonstration in
front of a school at the start of the 2002/2003 school year, denying
entry to the Roma children. Under strong national and international
pressure, the authorities recognised that these practices existed and
undertook to review this question.
31. When I visited Čakovec, I had the opportunity
to visit a primary school with a mixed enrolment. I hasten to thank
the head and the staff of this school for their reception. My
discussions with them satisfied me that the situation had
substantially improved thanks to the commitment of all concerned.
Certain difficulties still lingered, however. The Međimurje
region has a high proportion of Roma and schools have a large
enrolment of Roma pupils who make up as much as 80% of certain age
bands. But these figures cannot justify any segregation whatsoever
between children, who must be equally treated. I sincerely hope there
will be no recurrence of the events which took place in the past, and
it is imperative to guarantee that the social and ethnic mix is
maintained for the sake of having Roma and non-Roma children educated
together in the same classes.
32. Difficulties over Roma pupils' Croatian language
proficiency were also reported to me. I would stress the importance
of putting all pupils through the same syllabus and the same teaching
process in one class. Nonetheless, the knowledge gap problem is not
to be evaded. As a remedy to it, it could be useful to set up at
national level pre-school classes for children whose mother tongue is
not Croatian. That way, they will acquire a sufficient grounding in
the Croatian language to be able to keep up with the primary school
courses later, while at the same time familiarising themselves with
the school institution. In the second place, it rests with the
parents to ensure the sound learning of the language and their
children's regular attendance for the entire school course.”
2. Final Report by Mr Alvaro Gil-Robles on the
Human-Rights Situation of the Roma, Sinti and Travellers in Europe
(dated 15 February 2006)
In the third section of the report, which concerns
discrimination in education, the Commissioner noted that the fact
that a significant number of Roma children did not have access to
education of a similar standard to that enjoyed by other children was
in part a result of discriminatory practices and prejudices. In that
connection, he noted that segregation in education was a common
feature in many Council of Europe member States. In some countries
there were segregated schools in segregated settlements, in others
special classes for Roma children in ordinary schools ... Being
subjected to special schools or classes often meant that these
children followed a curriculum inferior to those of mainstream
classes, which diminished their opportunities of further education
and finding employment in the future... At the same time, segregated
education denied both Roma and non-Roma children the chance to know
each other and to learn to live as equal citizens. It excluded Roma
children from mainstream society at the very beginning of their
lives, increasing the risk of their being caught in the vicious
circle of marginalisation.
It
was also noted that special classes or special curricula for the Roma
had been introduced with good intentions, for the purposes of
overcoming language barriers or remedying the lack of pre-school
attendance of Roma children. Evidently, it was necessary to respond
to such challenges, but segregation or systematic placement of Roma
children in classes which followed a simplified or a special
Romani-language curriculum while isolating them from other pupils was
clearly a distorted response. Instead of segregation, significant
emphasis had to be placed on measures such as pre-school and
in-school educational and linguistic support as well as the provision
of school assistants to work alongside teachers. In certain
communities, it was crucial to raise the awareness of Roma parents –
who themselves might not have had the possibility to attend school –
of the necessity and benefits of adequate education for their
children.
In
conclusion, the Commissioner made a number of recommendations related
to education. Where segregated education still existed in one form or
another, it had to be replaced by ordinary integrated education and,
where appropriate, banned through legislation. Adequate resources had
to be made available for the provision of pre-school education,
language training and school assistant training in order to ensure
the success of desegregation efforts. Adequate assessment had to be
made before children were placed in special classes, in order to
ensure that the sole criterion in the placement was the objective
needs of the child, not his or her ethnicity.
The
excerpt of the report concerning Croatia reads:
“52. While visiting Croatia in 2004, I
learned of a two-year programme, initiated in 2002, to prepare all
Roma children for schools, under which children were taught various
skills in the Croatian language. Under the Croatian Action Plan for
the Decade for Roma Inclusion, special efforts to improve pre-school
education for Roma children have been continued with a view to full
integration in the regular school system. ...”
IV. OTHER COUNCIL OF EUROPE DOCUMENTS
A. The Committee of Ministers
1. Recommendation No. R (2000) 4 of the Committee of
Ministers to member states on the education of Roma/Gypsy children in
Europe (adopted by the Committee of Ministers on 3 February 2000 at
the 696th meeting of the Ministers' Deputies)
The
recommendation provides as follows:
“The Committee of Ministers, under the terms of
Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to
achieve greater unity between its members and that this aim may be
pursued, in particular, through common action in the field of
education;
Recognising that there is an urgent need to build new
foundations for future educational strategies toward the Roma/Gypsy
people in Europe, particularly in view of the high rates of
illiteracy or semi-literacy among them, their high drop-out rate, the
low percentage of students completing primary education and the
persistence of features such as low school attendance;
Noting that the problems faced by Roma/Gypsies in the
field of schooling are largely the result of long-standing
educational policies of the past, which led either to assimilation or
to segregation of Roma/Gypsy children at school on the grounds that
they were 'socially and culturally handicapped';
Considering that the disadvantaged position of
Roma/Gypsies in European societies cannot be overcome unless equality
of opportunity in the field of education is guaranteed for Roma/Gypsy
children;
Considering that the education of Roma/Gypsy children
should be a priority in national policies in favour of Roma/Gypsies;
Bearing in mind that policies aimed at addressing the
problems faced by Roma/Gypsies in the field of education should be
comprehensive, based on an acknowledgement that the issue of
schooling for Roma/Gypsy children is linked with a wide range of
other factors and pre-conditions, namely the economic, social and
cultural aspects, and the fight against racism and discrimination;
Bearing in mind that educational policies in favour of
Roma/Gypsy children should be backed up by an active adult education
and vocational education policy; ...
Recommends that in implementing their education policies
the governments of the member states:
– be guided by the principles set out in the
appendix to this Recommendation;
– bring this Recommendation to the attention of
the relevant public bodies in their respective countries through the
appropriate national channels.”
78. The
relevant sections of the Appendix to Recommendation No. R (2000)
4 read as follows:
“Guiding principles of an education policy for
Roma/Gypsy children in Europe
I. Structures
1. Educational policies for Roma/Gypsy
children should be accompanied by adequate resources and the flexible
structures necessary to meet the diversity of the Roma/Gypsy
population in Europe and which take into account the existence of
Roma/Gypsy groups which lead an itinerant or semi-itinerant
lifestyle. In this respect, it might be envisaged having recourse to
distance education, based on new communication technologies.
2. Emphasis should be put on the need to
better co-ordinate the international, national, regional and local
levels in order to avoid dispersion of efforts and to promote
synergies.
3. To this end member states should make the
Ministries of Education sensitive to the question of education of
Roma/Gypsy children.
4. In order to secure access to school for
Roma/Gypsy children, pre-school education schemes should be widely
developed and made accessible to them.
5. Particular attention should also be paid
to the need to ensure better communication with parents, where
necessary using mediators from the Roma/Gypsy community which could
then lead to specific career possibilities. Special information and
advice should be given to parents about the necessity of education
and about the support mechanisms that municipalities can offer
families. There has to be mutual understanding between parents and
schools. The parents' exclusion and lack of knowledge and education
(even illiteracy) also prevent children from benefiting from the
education system.
6. Appropriate support structures should be
set up in order to enable Roma/Gypsy children to benefit, in
particular through positive action, from equal opportunities at
school.
7. The member states are invited to provide
the necessary means to implement the above-mentioned policies and
arrangements in order to close the gap between Roma/Gypsy pupils and
majority pupils.
II. Curriculum and teaching material
8. Educational policies in favour of
Roma/Gypsy children should be implemented in the framework of broader
intercultural policies, taking into account the particular features
of the Romani culture and the disadvantaged position of many
Roma/Gypsies in the member states.
9. The curriculum, on the whole, and the
teaching material should therefore be designed so as to take into
account the cultural identity of Roma/Gypsy children. Romani history
and culture should be introduced in the teaching material in order to
reflect the cultural identity of Roma/Gypsy children. The
participation of representatives of the Roma/Gypsy community should
be encouraged in the development of teaching material on the history,
culture or language of the Roma/Gypsies.
10. However, the member states should ensure
that this does not lead to the establishment of separate curricula,
which might lead to the setting up of separate classes.
11. The member states should also encourage
the development of teaching material based on good practices in order
to assist teachers in their daily work with Roma/Gypsy pupils.
12. In the countries where the Romani language is
spoken, opportunities to learn in the mother tongue should be offered
at school to Roma/Gypsy children.
III. Recruitment and training of teachers
13. It is important that future teachers
should be provided with specific knowledge and training to help them
understand better their Roma/Gypsy pupils. The education of
Roma/Gypsy pupils should however remain an integral part of the
general educational system.
14. The Roma/Gypsy community should be
involved in the designing of such curricula and should be directly
involved in the delivery of information to future teachers.
15. Support should also be given to the
training and recruitment of teachers from within the Roma/Gypsy
community.
...”
2. Recommendation CM/Rec (2009)9 of the Committee of
Ministers to member states on the education of Roma and Travellers in
Europe (adopted by the Committee of Ministers on 17 June 2009 at the
1061st meeting of the Ministers' Deputies)
The
relevant part of the recommendation reads:
“The Committee of Ministers ...
1. Recommends that the governments of member states,
with due regard for their constitutional structures, national or
local situations and educational systems:
...
b. elaborate, disseminate and implement education
policies focusing on ensuring non-discriminatory access to quality
education for Roma and Traveller children, based on the orientations
set out in the appendix to this recommendation;
...
d. ensure, through local and regional
authorities, that Roma and Traveller children are effectively
accepted in school;
...”
The
relevant sections of the Appendix to Recommendation CM/Rec (2009)4
read as follows:
I. Principles of policies
“...
5. Member states should ensure that legal measures are
in place to prohibit segregation on racial or ethnic grounds in
education, with effective, proportionate and dissuasive sanctions,
and that the law is effectively implemented. Where de facto
segregation of Roma and Traveller children based on their racial or
ethnic origin exists, authorities should implement desegregation
measures. Policies and measures taken to fight segregation should be
accompanied by appropriate training of educational staff and
information for parents.
6. Educational authorities should set up assessment
procedures that do not result in risks of enrolling children in
special-education institutions based on linguistic, ethnic, cultural
or social differences but facilitate access to schooling. Roma and
Traveller representatives should be involved in defining and
monitoring these procedures.
...”
II. Structures and provision for access to education
“9. Roma and Travellers should be provided with
unhindered access to mainstream education at all levels subject to
the same criteria as the majority population. To accomplish this
goal, imaginative and flexible initiatives should be taken as
required in terms of educational policy and practice. Appropriate
measures should also be taken to ensure equal access to educational,
cultural, linguistic and vocational opportunities offered to all
learners, with particular attention to Roma and Traveller girls and
women.
10. Attendance of preschool education for Roma and
Traveller children should be encouraged, under equal conditions as
for other children, and enrolment in preschool education should be
promoted if necessary by providing specific support measures.
...”
III. Curriculum, teaching material and teacher
training
“...
19. Educational authorities should ensure that all
teachers, and particularly those working in ethnically mixed classes,
receive specialised training on intercultural education, with a
special regard to Roma and Travellers. Such training should be
included in officially recognised programmes and should be made
available in various forms, including distance and online learning,
summer schools, etc.
20. Teachers working directly with Roma and Traveller
children should be adequately supported by Roma or Traveller
mediators or assistants and should be made aware that they need to
engage Roma and Traveller children more in all educational activities
and not de-motivate them by placing lower demands upon them and
encourage them to develop their full potential.
...”
B. The Parliamentary Assembly
1. Recommendation no. 1203 (1993) on Gypsies in Europe
The Parliamentary Assembly made, inter alia,
the following general observations:
“One of the aims of the Council of Europe is to
promote the emergence of a genuine European cultural identity. Europe
harbours many different cultures, all of them, including the many
minority cultures, enriching and contributing to the cultural
diversity of Europe.
A special place among the minorities is reserved for
Gypsies. Living scattered all over Europe, not having a country to
call their own, they are a true European minority, but one that does
not fit into the definitions of national or linguistic minorities.
As a non-territorial minority, Gypsies greatly
contribute to the cultural diversity of Europe. In different parts of
Europe they contribute in different ways, be it by language and music
or by their trades and crafts.
With central and east European countries now member
states, the number of Gypsies living in the area of the Council of
Europe has increased drastically.
Intolerance of Gypsies by others has existed throughout
the ages. Outbursts of racial or social hatred, however, occur more
and more regularly, and the strained relations between communities
have contributed to the deplorable situation in which the majority of
Gypsies lives today.
Respect for the rights of Gypsies, individual,
fundamental and human rights and their rights as a minority, is
essential to improve their situation.
Guarantees for equal rights, equal chances, equal
treatment, and measures to improve their situation will make a
revival of Gypsy language and culture possible, thus enriching the
European cultural diversity.
The guarantee of the enjoyment of the rights and
freedoms set forth in Article 14 of the European Convention on Human
Rights is important for Gypsies as it enables them to maintain their
individual rights.
...”
As
far as education is concerned, the Recommendation states:
“vi. the existing European programmes
for training teachers of Gypsies should be extended;
...
viii. talented young Gypsies should be
encouraged to study and to act as intermediaries for Gypsies;
...”
2. Recommendation no. 1557 (2002): 'The legal situation
of Roma in Europe'
This
recommendation states, inter alia:
“...
3. Today Roma are still subjected to
discrimination, marginalisation and segregation. Discrimination is
widespread in every field of public and personal life, including
access to public places, education, employment, health services and
housing, as well as crossing borders and access to asylum procedures.
Marginalisation and the economic and social segregation of Roma are
turning into ethnic discrimination, which usually affects the weakest
social groups.
4. Roma form a special minority group, in so
far as they have a double minority status. They are an ethnic
community and most of them belong to the socially disadvantaged
groups of society.
...
15. The Council of Europe can and must play
an important role in improving the legal status, the level of
equality and the living conditions of Roma. The Assembly calls upon
the member states to complete the six general conditions, which are
necessary for the improvement of the situation of Roma in Europe:
...
c. to guarantee equal treatment for
the Romany minority as an ethnic or national minority group in the
field of education, employment, housing, health and public services.
Member states should give special attention to:
i. promoting equal opportunities for Roma on
the labour market;
ii. providing the possibility for Romany
students to participate in all levels of education from kindergarten
to university;
iii. developing positive measures to recruit
Roma in public services of direct relevance to Roma communities, such
as primary and secondary schools, social welfare centres, local
primary health care centres and local administration;
...
d. to develop and implement positive
action and preferential treatment for the socially deprived strata,
including Roma as a socially disadvantaged community, in the field of
education, employment and housing...;
e. to take specific measures and
create special institutions for the protection of the Romany
language, culture, traditions and identity:
...
ii. to encourage Romany parents to send their
children to primary school, secondary school and higher education,
including college or university, and give them adequate information
about the necessity of education;
...
v. to recruit Roma teaching staff,
particularly in areas with a large Romany population;
f. to combat racism, xenophobia and
intolerance and to ensure non-discriminatory treatment of Roma at
local, regional, national and international levels:
...
vi. to pay particular attention to the
phenomenon of discrimination against Roma, especially in the fields
of education and employment;
...”
C. The European Commission against Racism and
Intolerance (ECRI)
1. ECRI general policy recommendation no. 3: 'Combating
racism and intolerance against Roma/Gypsies' (adopted by ECRI on
6 March 1998)
The
relevant sections of this recommendation state:
“The European Commission against Racism and
Intolerance:
...
Recalling that combating racism, xenophobia,
antisemitism and intolerance forms an integral part of the protection
and promotion of human rights, that these rights are universal and
indivisible, and that all human beings, without any distinction
whatsoever, are entitled to these rights;
...
Noting that Roma/Gypsies suffer throughout Europe from
persisting prejudices, are victims of a racism which is deeply-rooted
in society, are the target of sometimes violent demonstrations of
racism and intolerance and that their fundamental rights are
regularly violated or threatened;
Noting also that the persisting prejudices against
Roma/Gypsies lead to discrimination against them in many fields of
social and economic life, and that such discrimination is a major
factor in the process of social exclusion affecting many
Roma/Gypsies;
...
recommends the following to Governments of member
States:
...
– to ensure that discrimination as such, as well
as discriminatory practices, are combated through adequate
legislation and to introduce into civil law specific provisions to
this end, particularly in the fields of employment, housing and
education;
...
– to vigorously combat all forms of school
segregation towards Roma/Gypsy children and to ensure the effective
enjoyment of equal access to education;
...”
2. ECRI general policy recommendation no. 7 on national
legislation to combat racism and racial discrimination (adopted by
ECRI on 13 December 2002)
The following definitions are used for the purposes of
this Recommendation:
“a) 'racism' shall mean the belief that
a ground such as race, colour, language, religion, nationality or
national or ethnic origin justifies contempt for a person or a group
of persons, or the notion of superiority of a person or a group of
persons.
b) 'direct racial discrimination' shall mean
any differential treatment based on a ground such as race, colour,
language, religion, nationality or national or ethnic origin, which
has no objective and reasonable justification. Differential treatment
has no objective and reasonable justification if it does not pursue a
legitimate aim or if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised.
c) 'indirect racial discrimination' shall
mean cases where an apparently neutral factor such as a provision,
criterion or practice cannot be as easily complied with by, or
disadvantages, persons belonging to a group designated by a ground
such as race, colour, language, religion, nationality or national or
ethnic origin, unless this factor has an objective and reasonable
justification. This latter would be the case if it pursues a
legitimate aim and if there is a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised.”
In the explanatory memorandum to this recommendation,
it is noted (point 8) that the definitions of direct and indirect
racial discrimination contained in paragraph 1 b) and c) of the
Recommendation draw inspiration from those contained in Council
Directive 2000/43/EC implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin and in
Council Directive 2000/78/EC establishing a general framework for
equal treatment in employment and occupation and on the case-law of
the European Court of Human Rights.
V. RELEVANT UNITED NATIONS MATERIALS
A. International Covenant on Civil and Political Rights
Article
26 of the Covenant provides:
“All persons are equal before the law and are
entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status.”
In
points 7 and 12 of its General Observations no. 18 of 10 November
1989 on Non-Discrimination, the Human Rights Committee expressed the
following opinion:
“7. ... the Committee believes that the
term 'discrimination' as used in the Covenant should be understood to
imply any distinction, exclusion, restriction or preference which is
based on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property,
birth or other status, and which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise by all
persons, on an equal footing, of all rights and freedoms.
12. ... when legislation is adopted by a
State party, it must comply with the requirement of article 26 that
its content should not be discriminatory.”
In
point 11.7 of its Views dated 31 July 1995 on Communication
no. 516/1992 concerning the Czech Republic, the Committee noted:
“... the Committee is of the view, however, that
the intent of the legislature is not alone dispositive in determining
a breach of article 26 of the Covenant. A politically motivated
differentiation is unlikely to be compatible with article 26. But an
act which is not politically motivated may still contravene article
26 if its effects are discriminatory.”
B. International Convention on the Elimination of All
Forms of Racial Discrimination
Article
1 of this Convention provides:
“... the term 'racial discrimination' shall mean
any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose
or effect of nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other
field of public life.
...”
In
its General Recommendation no. 14 of 22 March 1993 on the definition
of discrimination, the Committee on the Elimination of Racial
Discrimination noted, inter alia:
“1. ... A distinction is contrary to
the Convention if it has either the purpose or the effect of
impairing particular rights and freedoms. This is confirmed by the
obligation placed upon States parties by article 2, paragraph 1 (c),
to nullify any law or practice which has the effect of creating or
perpetuating racial discrimination. ...
2. ... In seeking to determine whether an
action has an effect contrary to the Convention, [the Committee] will
look to see whether that action has an unjustifiable disparate impact
upon a group distinguished by race, colour, descent, or national or
ethnic origin.”
In
its General Recommendation no. 19 of 18 August 1995 on racial
segregation and apartheid, the Committee observed:
“3. ... while conditions of complete or
partial racial segregation may in some countries have been created by
governmental policies, a condition of partial segregation may also
arise as an unintended by-product of the actions of private persons.
In many cities residential patterns are influenced by group
differences in income, which are sometimes combined with differences
of race, colour, descent and national or ethnic origin, so that
inhabitants can be stigmatized and individuals suffer a form of
discrimination in which racial grounds are mixed with other grounds.
4. The Committee therefore affirms that a
condition of racial segregation can also arise without any initiative
or direct involvement by the public authorities. ...”
In
its General Recommendation no. 27 of 16 August 2000 on Discrimination
against Roma, the Committee made, inter alia, the following
recommendation in the education sphere:
“17. To support the inclusion in the
school system of all children of Roma origin and to act to reduce
drop-out rates, in particular among Roma girls, and, for these
purposes, to cooperate actively with Roma parents, associations and
local communities.
18. To prevent and avoid as much as possible
the segregation of Roma students, while keeping open the possibility
for bilingual or mother-tongue tuition; to this end, to endeavour to
raise the quality of education in all schools and the level of
achievement in schools by the minority community, to recruit school
personnel from among members of Roma communities and to promote
intercultural education.
19. To consider adopting measures in favour
of Roma children, in cooperation with their parents, in the field of
education.”
In its concluding observations of 30 March 1998
following its examination of the report submitted by the Czech
Republic, the Committee noted, inter alia:
“13. The marginalization of the Roma
community in the field of education is noted with concern. Evidence
that a disproportionately large number of Roma children are placed in
special schools, leading to de facto racial segregation, and that
they also have a considerably lower level of participation in
secondary and higher education, raises doubts about whether article 5
of the Convention is being fully implemented.”
C. Convention on the Rights of the Child
Articles
28 and 30 of this Convention provide:
Article 28
“1. States Parties recognize the right
of the child to education, and with a view to achieving this right
progressively and on the basis of equal opportunity, they shall, in
particular:
(a) Make primary education compulsory and
available free to all;
...
(e) Take measures to encourage regular
attendance at schools and the reduction of drop-out rates.
...”
Article 30
“In those States in which ethnic, religious or
linguistic minorities or persons of indigenous origin exist, a child
belonging to such a minority or who is indigenous shall not be denied
the right, in community with other members of his or her group, to
enjoy his or her own culture, to profess and practise his or her own
religion, or to use his or her own language.”
D. Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities
The
relevant part of Article 4 provides:
“1. States shall take measures
where required to ensure that persons belonging to minorities may
exercise fully and effectively all their human rights and fundamental
freedoms without any discrimination and in full equality before the
law.
...”
E. United Nations Education, Scientific and Cultural
organisation -UNESCO
Articles
1 and 3 of the Convention against Discrimination in Education of 14
December 1960 provide:
Article 1
“1. For the purposes
of this Convention, the term 'discrimination' includes any
distinction, exclusion, limitation or preference which, being based
on race, colour, sex, language, religion, political or other opinion,
national or social origin, economic condition or birth, has the
purpose or effect of nullifying or impairing equality of treatment in
education and in particular:
(a) Of depriving any
person or group of persons of access to education of any type or at
any level;
(b) Of limiting any person
or group of persons to education of an inferior standard;
(c) Subject to the
provisions of Article 2 of this Convention, of establishing or
maintaining separate educational systems or institutions for persons
or groups of persons; or
(d) Of inflicting on any
person or group of persons conditions which are incompatible with the
dignity of man.
...”
Article 3
“In order to eliminate and
prevent discrimination within the meaning of this Convention, the
States Parties thereto undertake:
(a) To abrogate any
statutory provisions and any administrative instructions and to
discontinue any administrative practices which involve discrimination
in education;
(b) To ensure, by
legislation where necessary, that there is no discrimination in the
admission of pupils to educational institutions;
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained about the length of the proceedings before the
national courts. They relied on Article 6 § 1 of the Convention
which, insofar as relevant reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. The Chamber judgment
In
its judgment of 17 July 2008 the Chamber found that Article 6 was
applicable to the present case under its civil head and that the
length of the proceedings had been excessive.
B. The parties' submissions to the Grand Chamber
1. Applicability of Article 6 § 1
The
Government, relying on the Court's judgment in the case of Tinnelly
& Sons Ltd and Others and McElduff and Others v. the United
Kingdom (10 July 1998, Reports of Judgments and Decisions
1998 IV), disputed the applicability of Article 6 to the
proceedings conducted before the national courts upon the applicants'
civil action.
The
applicants argued in favour of the applicability of Article 6.
2. Merits
The
applicants complained that the length of proceedings, and in
particular those before the Constitutional Court, had exceeded the
reasonable time requirement.
The
Government contested that argument, stressing the special role of the
Constitutional Court and the fact that it had to address complex
constitutional issues in the applicants' case.
C. The Court's assessment
1. As to the Government's preliminary objection
In
its judgment Emine Araç v. Turkey (no. 9907/02, 23
September 2008) the Court explicitly recognised, for the first time,
that the right of access to higher education is a right of a civil
nature and, in so doing, it abandoned the case-law of the Commission
(André Simpson v. the United Kingdom, no. 14688/89,
Commission decision of 4 December 1989, Decisions and Reports (DR)
64, p. 188), which had concluded that Article 6 was inapplicable to
proceedings concerning the laws on education (on the ground that the
right not to be denied primary education fell within the domain of
public law). The Court considers that the same reasoning applies a
fortiori in the context of primary education (argumentum a
maiore ad minus).
In
addition, in the Kök v. Turkey judgment (no.
1855/02, § 36, 19 October 2006), the Court found that,
where a State confers rights which can be enforced by means of a
judicial remedy, these can, in principle, be regarded as civil rights
within the meaning of Article 6 § 1 (see, along the same lines,
Tinnelly & Sons Ltd and Others and McElduff and Others,
cited above, § 61).
As to the present case, it seems clear that a
“dispute” arose in respect of the applicants' initial and
then continuing placement in Roma-only classes during their schooling
in primary schools. The proceedings before the domestic courts
concerned the applicants' allegations of infringement of their right
not to be discriminated against in the sphere of education, their
right to education and their right not to be subjected to inhuman and
degrading treatment. The applicants raised their complaints before
the regular civil courts and in the Constitutional Court and their
complaints were examined on the merits.
Furthermore, the applicants' right not to be
discriminated against on the basis of race was clearly guaranteed
under Article 14 § 1 of the Constitution and, as such,
enforceable before the regular civil courts in the national legal
system (see, mutatis mutandis, Tserkva Sela Sosulivka v.
Ukraine, no. 37878/02, § 42, 28 February
2008, and Gülmez v. Turkey, no. 16330/02, § 29,
20 May 2008).
In view of the above, the Court concludes that Article 6 § 1 is
applicable in the instant case.
2. Merits
The
Court reiterates that the reasonableness of the length of these
proceedings is to be assessed in the light of the particular
circumstances of the case, regard being had to the criteria laid down
in the Court's case-law, in particular the complexity of the case,
the applicants' conduct and that of the competent authorities, and
the importance of what was at stake for the applicant in the
litigation (see Süßmann v. Germany, 16 September
1996, § 48, Reports 1996 IV, and Gast and Popp v.
Germany, no. 29357/95, § 70, ECHR 2000 II). In this
connection the Court notes that the proceedings commenced on 19 April
2002 and ended with the Constitutional Court's decision of 7 February
2007. While the case was speedily decided by the trial and appellate
court, where the proceedings lasted for some seven months, the same
cannot be said of the length of proceedings before the Constitutional
Court, which lasted for four years, one month and eighteen days.
Although
the Court accepts that the Constitutional Court's role of guardian of
the Constitution sometimes makes it particularly necessary for it to
take into account considerations other than the mere chronological
order in which cases are entered on the list, such as the nature of a
case and its importance in political and social terms, the Court
finds that a period exceeding four years to decide on the applicants'
case and in particular in view of what was at stake, namely the right
to education, appears excessive.
Accordingly,
the Court considers that in the present case there has been a
violation of Article 6 § 1 of the Convention on account of the
length of proceedings before the Constitutional Court.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ
IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL NO. 1
The
applicants complained that they had been denied their right to
education and discriminated against in this respect. They relied on
Article 2 of Protocol No. 1 and Article 14 of the Convention, which
read as follows:
Article 14 – Prohibition of discrimination
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article 2 of Protocol No. 1 – Right to
education
“No person shall be denied the right to education.
In the exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right of
parents to ensure such education and teaching in conformity with
their own religious and philosophical convictions.”
A. The Chamber judgment
The
Chamber found no violation of Article 2 of Protocol No. 1 taken alone
or in conjunction with Article 14 of the Convention. It held that the
applicants had been assigned to Roma-only classes because they lacked
sufficient command of the Croatian language and that this measure had
been justified.
B. The parties' submissions to the Grand Chamber
1. The applicants
As
regards the nine applicants (the second to tenth applicants) who had
attended the Podturen Primary School, the applicants submitted that
in the school year 2000/2001, when they had all attended the second
grade, a majority of them had been assigned to a Roma-only class. The
following year, all nine of the applicants attending the Podturen
Primary School had been assigned to a Roma-only class with nineteen
Roma pupils. At the same time there was only one other class in the
third grade, consisting of nineteen non-Roma pupils. In the school
year 2002/2003 all nine applicants had been assigned together to a
Roma-only class in the fourth grade. In the school year 2003/2004
they had all been assigned to a mixed class only because there had
not been enough Roma pupils to form a Roma-only class.
As
regards the five applicants (the eleventh to fifteenth applicants)
who attended the Macinec Primary School, the applicants submitted
that they had been assigned to a Roma-only class during their entire
schooling. Most of the other Roma pupils had been assigned to
Roma-only classes. In total, out of 153 Roma pupils in the first four
grades, 137 had been assigned to Roma-only classes. In the fourth
grade, out of 44 pupils, 21 were Roma, all assigned to a Roma-only
class. The applicants argued that the Government had failed to
present any consistent and rational explanation for forming a
Roma-only class in the fourth year of schooling in the Macinec
Primary School since, in the applicants' view, by then all their
language problems should have already been adequately remedied. The
number of Roma-only classes in Croatia had increased from 27 in 2004
to 68 in 2008, 62 of which were in Međimurje County.
The
applicants stressed in particular that the method used by the school
authorities, allegedly to improve their language skills, had been
inadequate. In their opinion the best method of integrating children
with insufficient language proficiency would have been to place them
in classes together with children who spoke the language of teaching
because that, coupled with additional lessons in Croatian, would have
been the easiest and fastest way for the applicants to learn
Croatian. The applicants argued that it was critical to ensure that
children who spoke a different language at home were included in
groups that could provide good role models in terms of the majority
language and created the best conditions for their language needs.
They maintained that various research reports and expert bodies
within the Council of Europe, the European Union and the United
Nations recommended an integrative approach in the field of education
of Roma children.
The
applicants argued that there had been no specific programme in the
above respect. They admitted, however, that the sixth, seventh, tenth
and twelfth to fifteenth applicants had been provided with additional
lessons in Croatian. They also argued that they had been provided
with a sub-standard curriculum taught in Roma-only classes.
The
applicants claimed that there had been no legal basis for assigning
them to a Roma-only class. They argued that there had been no clear,
accessible and foreseeable procedures regarding the assignment of
pupils to special classes, either upon their enrolment or at
subsequent stages in their education. In their view the tests
employed as a part of the enrolment procedure were not designed to
assess a child's knowledge of the Croatian language but as an
orientation point in determining the child's psycho-physiological
status.
The
applicants submitted that, apart from a general grading system, there
had been no other specialised periodic assessment of their progress
in acquiring an adequate command of the Croatian language. The
grading scale was from one to five, and the lowest pass mark was two.
They further argued that even when they had achieved a pass mark in
the Croatian language they had not been transferred to a mixed class.
As
a rule their transfer to a mixed class had not been considered. On
the contrary, the school authorities had refused to transfer them,
claiming that the principle of homogeneity of a class was paramount.
The
applicants claimed that there had been no specific measures in place
for improving their poor school attendance and high drop-out rate,
other than sanctions against pupils and parents.
The
applicants submitted that there had been Roma assistants in the 1990s
and that recently they had been re-introduced, but that both times
this had been without a legal basis and without clear and objective
criteria for hiring them that would have ensured their competence and
positive results.
They
further argued that they had not taken part in any extra-curricular
activities in an ethnically/racially mixed group organised by the
school. They pointed to the lack of systematic and structured
approach to the integration of Roma children into mainstream classes.
Even if ethnically mixed extra-curricular activities existed, they
would be no substitute for complete classroom integration.
2. The Government
The
Government firstly pointed out that the applicants had not been
deprived of the right to attend school and receive education since
they had all enrolled in primary school at the age of seven, like all
children in Croatia, and had attended school until they reached the
age of fifteen, after which schooling was no longer mandatory. The
Government admitted that it was possible that the curriculum in
Roma-only classes was reduced by up to 30% in relation to the
regular, full curriculum. They argued that this was admissible under
relevant domestic laws, and that such a possibility had not been
reserved for Roma-only classes but was applied in respect of all
primary school classes in Croatia, depending on the particular
situation in a given class. Furthermore, the Roma-only classes were
by no means “special” classes of any kind. They were
ordinary classes in ordinary schools and were created only in schools
where the proportion of Roma pupils was significant or where they
represented a majority of pupils in a given generation, and then only
in respect of those Roma pupils who also lacked adequate command of
the Croatian language. In the Podturen Primary School the number of
Roma children in the lower grades varied from 33 to 36%. In 2001 the
total number of pupils had been 463, of whom 47 were Roma. There had
been only one Roma-only class, with 17 pupils while the remaining 33
Roma pupils had attended mixed classes. Since 2003 there had been no
Roma-only classes in that school. In Macinec Primary School the
number of Roma children in the lower grades varied from 57 to 75%.
Roma-only classes were formed in the lower grades and only
exceptionally in the upper grades. All classes in the two final
grades were mixed. In 2001 the total number of pupils had been 445,
of whom 194 were Roma. There had been six Roma-only classes, with 142
pupils, while the remaining 52 Roma pupils had attended mixed
classes.
The
Government submitted that the applicants had been assigned to
Roma-only classes on the basis of section 2 of the Primary Education
Act and the Rules on the Number of Pupils in Regular and Multi-Grade
Classes. Under section 2 of the Primary Education Act the purpose of
primary education was to ensure the continuing development of each
pupil as a spiritual, physical, moral, intellectual and social being,
according to his or her capabilities and affinities. In the
Government's view this could only be achieved in a permanent group of
pupils of approximately the same age and knowledge. The same legal
basis and the same criteria had been applied in respect of all other
pupils. The applicants had been submitted to the same tests as all
other children enrolling primary school. The applicants had been
assigned to Roma-only classes on the basis of their insufficient
knowledge of the Croatian language, in order to address their special
needs and to ensure an equal approach, which was possible only where
the majority of them had the same initial knowledge of the Croatian
language and psycho-physical readiness to attend primary school.
All
but the second and tenth applicants had been assigned to a Roma-only
class upon their enrolment in primary school. The second and tenth
applicants were initially enrolled in a mixed class. They failed the
first grade with negative marks in, inter alia, the Croatian
language. After that they were assigned to a Roma-only class.
In
respect of the applicants enrolled in the Macinec Primary School, the
Government submitted that the enrolment procedure included the
psycho-physical appraisal of the children by a panel composed of a
physician, a psychologist, a school counsellor (pedagog), a
defectologist and a teacher, in the presence of at least one of the
child's parents.
In
respect of the applicants enrolled in the Podturen Primary School,
the Government submitted that the records concerning the enrolment of
the applicants who had attended that school could not be found owing
to the passage of time. They did, however, submit a testimony of a
teacher who had led a three-month pre-school programme for Roma
children and who said that at the end of that programme a teacher
would assess each child's language level and then the child would be
placed in a mixed or Roma-only class accordingly.
The
Government submitted school records showing that all the applicants,
both in Podturen and Macinec Primary Schools, had been provided with
additional lessons in the Croatian language. They had been able to
participate in various extra-curricular activities carried out in the
Croatian language, some of which were particularly focused on the
improvement of language skills (such as recitals and reading).
Furthermore, in 2002 in the Podturen Primary School and in 2003 in
the Macinec Primary School, Roma assistants were recruited to help
children in Roma-only classes to improve their knowledge.
The
Government submitted that the assessment of the applicants' progress
had been a part of the regular procedure for the evaluation of
pupils, as in all other schools in Croatia. In the lower grades
evaluation in all subjects was done by the class teacher. A final
mark was given at end of each school year on the basis of all marks
given during the school year. The basic elements for determining a
mark were: knowledge and understanding of the subject matter, oral
and written expression, applying acquired knowledge in practice and
creative use of it, development of skills, participation in classes
and development of a pupil's psychophysical abilities and capacities.
In particular, elements for assessing knowledge of the Croatian
language included reading and writing skills, oral and written
expression, vocabulary and grammar, reading of books, and homework. A
mark combined a number of factors, among which the most important for
pupils in the lower grades were motivation and personal development
in respect of each subject. The marks were given according to the
individual capacity of each child. Therefore, the good marks given to
some of the applicants after they had failed a grade or repeatedly
failed a grade did not necessarily mean that they had a good command
of the Croatian language, but that they had achieved a certain
progress.
As
to the individual circumstances of the applicants in the present
case, the Government submitted that their progress had in fact been
very slow. All of the applicants had failed several grades in
succession. Sometimes it had taken them two or three years to
complete one grade. As an example they explained that the twelfth
applicant had had to repeat the first grade twice, after which he
scored three (good) in Croatian. However, in the first grade pupils
were taught basic reading and writing skills and a majority of them
received high marks. Therefore a three in Croatian after twice
repeating the first grade could not be seen as proof of an adequate
knowledge of the Croatian language. It had then taken him another
three years to complete the second grade.
Furthermore,
there were several procedural safeguards. Each parent had the right
to challenge a teacher's assessment. A school headmaster was obliged
to examine every complaint. Where the majority of parents at a school
meeting agreed that a particular teacher was not objective in his or
her assessment, the class teacher had to examine the complaint at a
meeting of the school board. Where the school board found the
complaint founded, the headmaster was obliged to take the necessary
measures, as prescribed by law. Furthermore, each pupil had the right
to complain about the marks awarded, and the right to ask for a
special panel to assess his or her knowledge. As to the applicants in
the present case, there had never been any complaints about the
assessment of their knowledge or their placement in a Roma-only
class. Likewise, their parents had never asked for the transfer of
their children to a mixed class.
The
Government submitted school records showing that a number of measures
had been adopted. Firstly, the class teachers encouraged pupils to
attend school. The schools held regular meetings of class teachers
with parents, as well as individual parent-teacher meetings for
pupils who had problems with school attendance, but the parents of
the pupils concerned mostly ignored invitations to both types of
meeting. The schools also employed Roma assistants who served, inter
alia, as mediators between the schools and parents and would
visit parents and explain the necessity and importance of education
for their children.
The
school authorities also regularly informed the applicants and their
parents that the applicants could continue their education at the
same school even after the age of fifteen. In addition, the
applicants also had a possibility of attending evening classes, free
of charge, in a nearby town in order to complete their primary
education. Three applicants enrolled in the evening programme, but
only one actually completed it. In respect of the fifth applicant,
the school authorities had informed the competent Social Welfare
Centre of the attendance problem, so that appropriate steps could be
taken. The teachers had been involved in resolving various problems
encountered in respect of the applicants. When a class teacher of the
tenth applicant had noticed that he had problems with his sight, the
teacher had taken him to an ophthalmologist and made sure he obtained
adequate glasses.
The
Government submitted that all Roma children, regardless of their
placement in a particular class, were integrated with other children
during their schooling in numerous ways, for example by their active
involvement in all extra-curricular activities organised at schools
(such as singing, dancing, handicraft, mixed activities), as well as
their participation in all outdoor activities organised by schools
(such as swimming lessons, excursions to towns, visits to various
sites, monuments and institutions, collection of litter, ecological
activities and various competitions), and participation with other
pupils in the social activities organised at schools (such as
Christmas and New Year's celebrations, School Day celebrations,
Sports Day celebrations, Bread Day celebrations), plus the fact that
they shared the same common school facilities, such as canteen and
playgrounds.
The
schools in question also organised special activities for all pupils
to improve non-Roma children's understanding of Roma traditions and
culture. These activities included celebrating Roma Day, organising
visits to Roma settlements, informing pupils about the Romani
language and customs and the problems Roma faced in everyday life,
and encouraging Roma pupils to publish texts and poems in school
magazines.
3. The interveners
(a) The Government of the Slovak Republic
The
Government of the Slovak Republic recognised the need to address the
learning difficulties of certain pupils, such as lack of proficiency
in the language of instruction at schools. They found different
compensatory measures adopted in that respect constructive. They
referred to the margin of appreciation afforded to the States in the
sphere of education and stressed that the States should not be
prohibited from setting up separate classes at different types of
school for children with difficulties, or from implementing special
educational programmes to respond to special needs.
Although
the special needs of children with learning difficulties had to be
addressed, that could not take precedence over the effective
functioning of an education system, which had to remain compact and
not fragmented according to the needs of each individual pupil. Thus,
the placing of a child in a different class on objective and
legitimate grounds, such as lack of proficiency in the language of
instruction, could not be considered discriminatory. The other
relevant factors in respect of the present case were the attitudes of
parents and the possibility of transferring pupils to mixed classes,
as well as the content of the school curriculum.
(b) Interights
Interights
stressed the necessity for the Court to develop a comprehensive body
of case-law on the substantive aspects of the right to education. The
obligation to respect the right to education required States parties
to avoid measures that hindered or prevented the enjoyment of this
right. The obligation to ensure that education was both adequate and
appropriate required States to take positive measures that would
enable and help individuals and communities to fully enjoy the right
to education. The principal aims of education could only be achieved
where children from different cultural backgrounds were educated
together in integrated schools.
Access
to education without discrimination implied that children should have
the opportunity to participate in, and benefit from, a mainstream
educational system that ensured their integration into society. All
international standards on education were buttressed by the principle
of non-discrimination. Because of the paramount importance of the
right to education, the failure to secure that right to children of
ethnic or linguistic minorities would undermine the ability of those
minorities to break the cycle of poverty and marginalisation which
many of them suffered from.
There
were effective and practical alternatives to segregation in schools
on the basis of linguistic and cultural differences. Segregation
could effectively deny a minority their right to learn the majority
language with consequential negative impact on their ability to
benefit from education and to effectively participate in, and
integrate into, general society. State-enforced segregation on the
basis of culture or ethnicity was not permissible. While States
should not segregate or exclude pupils on the basis of language in a
discriminatory manner, they needed to adopt certain measures which
would temporarily affect the segregation of pupils based on
insufficient command of the language of instruction. However, a very
narrow margin of appreciation was to be applied in that sphere in
order to ensure that the segregation occurred only on the basis of
valid linguistic needs and did so in a manner that ensured that
pupils should be fully integrated on an appropriate and timely basis.
(c) Greek Helsinki Monitor
Referring
to the Court's case-law concerning the right to education and in
particular to the judgments in the cases of D.H. and Others v. the
Czech Republic ([GC], no. 57325/00, ECHR 2007 ... ) and
Sampanis and Others v. Greece (no. 32526/05, 5 June
2008), the Greek Helsinki Monitor stressed the following principles.
The importance of tests aimed at assessing the educational level of
children upon their enrolment in schools was paramount, as well as
the need to ultimately assign all Roma children to ordinary,
mainstream classes. The principle of integrated education could be
diverged from only in certain exceptional circumstances. Only the
integrative educational policy was compatible with the role of the
member States' educational systems.
The
interveners further relied on the Action Plan on Improving the
Situation of Roma and Sinti within the OSCE area, which urged the
member States to “develop and implement comprehensive school
desegregation programmes aimed at: (1) discontinuing the practice of
systemically routing Roma children to special schools or classes; and
(2) transferring Roma children from special schools to mainstream
schools”. The interveners also relied on the relevant Council
of Europe Sources, cited above.
C. The Court's assessment
The
applicants in the present case made complaints under Article 2 of
Protocol No. 1 taken alone and in conjunction with Article 14 of the
Convention, claiming that the fact that they had been allocated to
Roma-only classes during their primary education violated their right
to receive an education and their right not to be discriminated
against. However, the Grand Chamber sees this case as raising
primarily a discrimination issue.
In
this connection the Court reiterates that Article 14 has no
independent existence, but plays an important role by complementing
the other provisions of the Convention and its Protocols, since it
protects individuals placed in similar situations from any
discrimination in the enjoyment of the rights set forth in those
other provisions. Where a substantive Article of the Convention or
its Protocols has been relied on both on its own and in conjunction
with Article 14 and a separate breach has been found of the
substantive Article, it is not generally necessary for the Court to
consider the case under Article 14 as well, though the position is
otherwise if a clear inequality of treatment in the enjoyment of the
right in question is a fundamental aspect of the case (see Dudgeon
v. the United Kingdom,
22 October 1981, § 67, Series A no. 45; Chassagnou
and Others v. France
[GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III;
and Timishev v. Russia,
nos. 55762/00 and 55974/00, § 53, ECHR 2005 XII).
145. The
complaint in the present case concerns alleged discrimination in
respect of the applicants' right to education on account of their
having been assigned, for part of their schooling, to separate
classes constituted, according to them, on the basis of ethnic
criteria. The Government for their part claimed that the applicants
had been placed in separate classes on account of their inadequate
command of the Croatian language. It follows that the central
question to be addressed in the present case is whether adequate
steps were taken by the school authorities to ensure the applicants'
speedy progress in acquiring an adequate command of Croatian and,
once this was achieved, their immediate integration in mixed classes.
In this connection, the curriculum followed by the applicants and the
procedures concerning
their transfer to mixed classes appear of high importance. Thus, the
alleged inequality of treatment in the enjoyment of the right to
education is a fundamental aspect of the present case and the issues
pertinent to this case are to be analysed from the standpoint of
Article 14 of the Convention read in conjunction with Article 2
of Protocol No. 1.
The
right to education, as set out in the first sentence of Article 2 of
Protocol No. 1, guarantees everyone within the jurisdiction of the
Contracting States “a right of access to educational
institutions existing at a given time”, but such access
constitutes only a part of the right to education. For that right “to
be effective, it is further necessary that, inter alia, the
individual who is the beneficiary should have the possibility of
drawing profit from the education received, that is to say, the right
to obtain, in conformity with the rules in force in each State, and
in one form or another, official recognition of the studies which he
has completed” (see Case “relating to certain aspects
of the laws on the use of languages in education in Belgium”
(merits), 23 July 1968, pp. 30-32, §§ 3-5, Series A no. 6;
Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December
1976, § 52, Series A no. 23; and Leyla
Şahin v. Turkey [GC],
no. 44774/98, § 152, ECHR 2005 XI).
While
the case at issue concerns the individual situation of the fourteen
applicants, the Court nevertheless cannot ignore that the applicants
are members of the Roma minority. Therefore, in its further analysis
the Court shall take into account the specific position of the Roma
population. As the Court has noted in previous cases that as a result
of their history, the Roma have become a specific type of
disadvantaged and vulnerable minority (see also the general
observations in the Parliamentary Assembly's Recommendation no. 1203
(1993) on Gypsies in Europe, cited in paragraph 79 above, and point 4
of its Recommendation no. 1557 (2002): 'The legal situation of
Roma in Europe', cited in paragraph 81 above). They therefore require
special protection. As is attested by the activities of numerous
European and international organisations and the recommendations of
the Council of Europe bodies, this protection also extends to the
sphere of education. The present case therefore warrants particular
attention, especially as when the applications were lodged with the
Court the applicants were minor children for whom the right to
education was of paramount importance (see D.H. and Others D.H.
and Others, cited above, § 182).
Lastly,
as noted in previous cases, the vulnerable position of Roma/Gypsies
means that special consideration should be given to their needs and
their different lifestyle both in the relevant regulatory framework
and in reaching decisions in particular cases (see Chapman v. the
United Kingdom [GC], no. 27238/95, § 96, ECHR 2001 I,
and Connors v. the United Kingdom, no. 66746/01, § 84, 27
May 2004). In Chapman, the Court also observed that there
could be said to be an emerging international consensus amongst the
Member States of the Council of Europe recognising the special needs
of minorities and an obligation to protect their security, identity
and lifestyle, not only for the purpose of safeguarding the interests
of the minorities themselves but to preserve a cultural diversity of
value to the whole community (see D.H. and Others, cited
above, § 181).
1. Whether there was a difference in treatment
According
to the Court's well-established case-law, discrimination means
treating differently, without an objective and reasonable
justification, persons in relevantly similar situations (see Willis
v. the United Kingdom, no. 36042/97, § 48, ECHR
2002 IV, and Okpisz v. Germany, no. 59140/00, § 33,
25 October 2005). However, Article 14 does not prohibit a member
State from treating groups differently in order to correct “factual
inequalities” between them; indeed in certain circumstances a
failure to attempt to correct inequality through different treatment
may in itself give rise to a breach of Article 14 (see Case
“relating to certain aspects of the laws on the use of
languages in education in Belgium” (merits), cited above,
p. 34, § 10; Thlimmenos v. Greece [GC],
no. 34369/97, § 44, ECHR 2000-IV; and Stec and
Others v. the United Kingdom [GC], no. 65731/01, § 51,
ECHR 2006 VI). Moreover the Contracting States enjoy a certain
margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify a different
treatment. However, very weighty reasons would have to be put forward
before the Court could regard a difference of treatment based
exclusively on the ground of ethnic origin as compatible with the
Convention (see Timishev, cited above, § 56).
The
Court has also accepted that a general policy or measure which is
apparently neutral but has disproportionately prejudicial effects on
persons or groups of persons who, as
for instance in the present case, are identifiable only on the basis
of an ethnic criterion, may be considered
discriminatory notwithstanding that it is not specifically aimed at
that group (see, mutatis mutandis, Hugh Jordan v. the
United Kingdom, no. 24746/94, § 154, 4 May
2001, and Hoogendijk v. the Netherlands (dec.), no. 58461/00,
6 January 2005; and Sampanis, cited above, § 68),
unless that measure is objectively
justified by a legitimate aim and the means of achieving that aim are
appropriate, necessary and proportionate. Furthermore,
discrimination potentially contrary to the Convention may result from
a de facto situation (see Zarb Adami v. Malta,
no. 17209/02, § 76, ECHR 2006 VIII).
Where an applicant produces prima
facie evidence that the
effect of a measure or practice is discriminatory, the burden of
proof will shift on to the respondent State, to whom it falls to show
that the difference in treatment is not discriminatory (see
D.H. and Others,
cited above, §§
180 and 189).
The
Court points out at the outset that it has recently adopted two
judgments in the sphere of education of Roma children finding that
the applicants were discriminated against on the basis of their
ethnic origin: D.H. and
Others v. the Czech Republic
and Sampanis and Others
v. Greece (both cited
above). The D.H.
and Others
judgment concerned a situation where a nationwide practice of placing
a disproportionate number of Roma children in schools for pupils with
learning difficulties amounted to discrimination based on the
applicants' ethnic origin. In Sampanis
and Others
the Court found that the practice of first denying Roma children
enrolment in school and their subsequent placement in special classes
located in an annex to the main building of a primary school, coupled
with a number of racist incidents in the school instigated by the
parents of non-Roma children, also amounted to discrimination based
on the applicants' Roma origin.
The
present case is to be distinguished from the above two cases, in
particular regarding the relevance of the statistics in the
three cases, which could have a bearing on whether there
is prima facie
evidence of discrimination and consequently on the burden of proof.
In D.H. and Others the Court established that between 50 and
70% of Roma children in the Czech Republic attended special schools
for pupils with learning difficulties (see D.H. and Others,
cited above, § 18), while in Sampanis and Others all Roma
children attending the school at issue were allocated to a separate
establishment (see Sampanis and Others, cited above, §
81). As to the present case, the Court firstly notes that the
applicants, unlike in the Sampanis
case, attended regular primary schools and that the Roma-only
classes were situated in the same premises as other classes. The
proportion of Roma children in the lower grades in Macinec Primary
School varies from 57 to 75%, while in Podturen Primary School
it varies from 33 to 36%. The data submitted for the year 2001 show
that in the Macinec Primary School 44% of pupils were Roma and 73% of
those attended a Roma-only class. In the Podturen Primary School 10%
of pupils were Roma and 36% of Roma pupils attended a Roma-only
class. These statistics demonstrate that only in the Macinec Primary
School did a majority of Roma pupils attend a Roma-only class, while
in the Podturen Primary School the percentage was below 50%. This
confirms that it was not a general policy to automatically place Roma
pupils in separate classes in both schools at issue. Therefore, the
statistics submitted do not suffice to establish that there is prima
facie evidence that the effect
of a measure or practice was discriminatory.
However,
indirect discrimination may be proved without statistical
evidence (see D.H.
and Others, cited
above, § 188). In this
connection the Court notes that the measure of placing children in
separate classes on the basis of their insufficient command of the
Croatian language was applied only in respect of Roma children in
several schools in Međimurje County, including the two primary
schools attended by the applicants in the present case. Thus, the
measure in question clearly represents a difference in treatment.
As
regards the grounds for the applicants' placement in separate
classes, the Court is also mindful of the general comments made in
the third ECRI report on Croatia, published on 17 December 2004 (see
paragraph 67 above), which refers to “allegations
that when the authorities tried to introduce mixed classes instead of
separate classes in some schools, they came up against opposition
from the non-Roma parents, who apparently signed petitions against
this measure, with the result that the separate classes were
maintained.” The Commissioner for Human Rights, in the report
on his visit to Croatia (see paragraph
72 above), referred to a
similar situation in the following passage: “The year 2002 saw
the worsening of problems around the town of Čakovec, which
applied a practice of separating Roma and non-Roma pupils in schools.
An atmosphere of intolerance took hold; non-Roma parents went so far
as to stage a demonstration in front of a school at the start of the
2002/2003 school year, denying entry to the Roma children.”
In
the circumstances of the present case, and even without any
discriminatory intent on the part of the relevant State authorities,
the fact that the measure in question was applied exclusively to the
members of a singular ethnic group, coupled with the alleged
opposition of other children's parents to the assignment of Roma
children to mixed classes, calls for an answer from the State to show
that the practice in question was objectively justified by a
legitimate aim and that the means of achieving that aim were
appropriate, necessary and proportionate.
2. Whether the difference in treatment had an objective
and reasonable justification
According
to the Court's case-law, a difference in treatment is discriminatory
if “it has no objective and reasonable justification”,
that is, if it does not pursue a “legitimate aim” or if
there is not a “reasonable relationship of proportionality”
between the means employed and the aim sought to be realised (see,
among many other authorities, Larkos v. Cyprus [GC],
no. 29515/95, § 29, ECHR 1999-I; Stec and Others,
cited above, § 51; and D.H. and Others, cited above, §
196). Where the difference in treatment is based on race,
colour or ethnic origin, the notion of objective and reasonable
justification must be interpreted as strictly as possible (see
Sampanis and Others, cited above, § 69).
The
Court considers that temporary placement of children in a separate
class on the grounds that they lack an adequate command of the
language is not, as such, automatically contrary to Article 14 of the
Convention. It might be said that in certain circumstances such
placement would pursue the legitimate aim of adapting the education
system to the specific needs of the children. However, when such a
measure disproportionately or even, as in the present case,
exclusively, affects members of a specific ethnic group, then
appropriate safeguards have to be put in place (see Buckley v. the
United Kingdom, 25 September 1996, § 76, Reports 1996 IV;
Connors, cited above, § 83; and Timishev, cited
above, § 56). Thus, the Court must now examine whether there
existed such safeguards at each stage of the implementation of the
measures complained of and whether they were effective.
(a) Initial placement of the applicants in
separate classes
The
Court first notes that there existed no clear and specific legal
basis for placing children lacking an adequate command of the
Croatian language in separate classes. The laws relied on by the
Government, namely, the Primary Education Act and the Rules on the
Number of Pupils in Regular and Multi-Grade Classes, did not provide
for separate classes for children lacking proficiency in the Croatian
language. The Government have not shown that this practice has been
applied in respect of any other pupils lacking an adequate command of
the Croatian language in any other part of Croatia, and not only in
respect of Roma children in several schools in Međimurje County,
including the two schools in question. Consequently, the impugned
measures can hardly be seen as part of a common and general practice
designed to address the problems of children who lack an adequate
command of the Croatian language.
Moreover,
the tests applied for deciding whether to assign pupils to Roma-only
classes are not specifically designed to test the children's command
of the Croatian language. Where the State authorities opt to place
children in a separate class on the ground that the children lack an
adequate command of the Croatian language, the testing of such
children should be specifically designed to assess their knowledge of
the language. In its Opinion on Croatia, adopted on 6 April 2001, the
Advisory Committee of the Framework Convention for the Protection of
National Minorities stressed that “placing children in separate
classes should take place only when it is absolutely necessary and
always on the basis of consistent, objective and comprehensive tests”
(see paragraph 68 above).
In
the present case no specific testing of the applicants' command of
the Croatian language took place. The testing of the applicants who
attended Macinec Primary School (the eleventh to fifteenth
applicants) was designed to test the children's general
psycho-physical condition, not their knowledge of the Croatian
language in particular. As regards the applicants who attended the
Podturen Primary School (the second to tenth applicants), the
Government have not shown that they were ever effectively tested in
this respect (see paragraph 125 above).
Furthermore,
certain inconsistencies in respect of some individual applicants
cannot be ignored. For example, both the second and the tenth
applicants were initially placed in a mixed class in Podturen Primary
School upon enrolling in the first grade in the school year
1997/1998. Only after two years were they transferred to a Roma-only
class. Assuming that, as the Government contend, insufficient
knowledge of the Croatian language was the reason for placing Roma
children in Roma-only classes, it is difficult to understand why the
second and the tenth applicants would have had sufficient knowledge
of the Croatian language at the age of seven, when they started
primary school, but no longer two years later, when they were
transferred to a Roma-only class. It is equally improbable that it
should have taken two years for their respective class teachers to
note the applicants' insufficient command of the language. Even if
these two applicants might have had some learning difficulties, as
suggested by the fact that they failed to go up a grade for the
initial two years of their schooling, these difficulties would not
appear to have been adequately addressed simply by placing the
applicants concerned in a Roma-only class. The tenth applicant, for
his part, was offered an adapted curriculum by reason of his
developmental difficulties only in the school year 2005/2006, that is
to say not until eight years after he enrolled in primary school and
when he was already reaching the age of fifteen and thus soon to
leave school.
The
Court does not consider satisfactory the explanation given by the
Government that, although these two applicants' command of the
Croatian language had been inadequate when they enrolled in school,
in those years there were no Roma-only classes in their school. For
the fact remains that the applicants' insufficient command of the
Croatian language was not adequately addressed for the first two
years of their schooling.
(b) Curriculum
As
regards the curriculum provided in Roma-only classes, the Government
first argued that it was the same as in any other classes of the same
grade and that all subjects were taught in Croatian. Yet, at the same
time they contended that the applicants' command of the Croatian
language had been insufficient to follow the regular school
curriculum with the other pupils. The Government also admitted that
the curriculum in Roma-only classes might have been reduced by up to
30% compared with the full standard curriculum, such a reduction
being permissible under national laws and not reserved for Roma-only
classes but accepted and allowed in respect of any primary school
class in Croatia, depending on the abilities of the pupils in a given
class.
The
Court notes that if the applicants were taught the same curriculum as
all other pupils, there appears to be no reason to have placed them
in separate classes. However, if they were placed in separate classes
because they lacked an adequate command of the Croatian language, the
regular curriculum, taught in Croatian, could not possibly address
their needs. Furthermore, the Government's contention that the
applicants followed a regular curriculum is difficult to reconcile
with the comments submitted on 26 September 2001 by the Croatian
Government in response to the Opinion of the Advisory Committee on
the Framework Convention for the Protection of National Minorities,
according to which “The Ministry of Education and Sports, in
cooperation with the local administration, has taken a number of
measures for this purpose [namely, to overcome the language barrier]
– additional assistance to overcome problems concerning the
following and comprehension of school lessons, adaptation of
curricula to the needs of Roma children ...” (see paragraph 69
above). Thus, it would appear that the Roma children followed an
“adapted curriculum”, though it is not clear what exactly
that included.
As
regards the fact that the curriculum taught in Roma-only classes
might have been reduced by 30%, the Court first notes that the
Government have not indicated the exact legal basis for such a
reduction. Secondly, and more importantly, they have not shown how
the mere fact of a possible reduction of the curriculum could be
considered an appropriate way to address the applicants' alleged lack
of proficiency in Croatian. Since, as indicated by the Government,
teaching in the schools in question was in Croatian only, the State
in addition had the obligation to take appropriate positive measures
to assist the applicants in acquiring the necessary language skills
in the shortest time possible, notably by means of special language
lessons, so that they could be quickly integrated into mixed classes.
In
this connection the Court refers to the above-mentioned comments
submitted by the Croatian Government in response to the Opinion of
the Advisory Committee on the Framework Convention for the Protection
of National Minorities, according to which “those children who
do not speak the Croatian language may well be enrolled in special
classes where they receive special attention with a view to learning
the Croatian language” (see paragraph 69 above). The
applicants, however, once assigned to Roma-only classes, were not
provided with any specific programme in order to address their
alleged linguistic insufficiencies. Nor have the Government shown the
existence of any written instructions or guidelines concerning the
programme to be followed by pupils assigned to Roma-only classes.
As
to the existence of additional Croatian classes, one of the means by
which in the Government's submission the applicants' language
deficiencies had been addressed, it would appear that the third,
fourth and fifth applicants were never provided with such classes,
although all three of them attended a Roma-only class for at least
the first two years of their primary education.
As
regards the sixth to eleventh applicants, it was not until their
third grade that they were offered additional Croatian language
lessons, although they were all placed in a Roma-only class from
their first grade.
The
thirteenth to fifteenth applicants were offered additional language
classes only in the first year of their schooling. Yet they all
stayed in a Roma-only class for the rest of their primary schooling.
Only
the twelfth applicant was systematically offered additional Croatian
language classes in the first, second and third grade. However, he
stayed for his entire primary schooling in a Roma-only class.
In
any event, even such additional classes in Croatian could at best
only compensate 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.
(c) Transfer and monitoring procedure
As
to the transfer from Roma-only to mixed classes, the Government, both
in the proceedings before the national courts and before this Court,
argued that the homogeneity of each class had been an important
factor in not transferring the applicants to a mixed class. However,
as indicated above, the placement of the applicants in Roma-only
classes could be seen as pursuing a legitimate aim only if it served
the purpose of bringing their command of the Croatian language up to
an adequate level and then securing their immediate transfer to a
mixed class.
In
this respect, it is to be noted that no programme was established for
addressing the special needs of Roma children lacking in language
skills that included a time-frame for the various phases of
acquisition of the necessary language skills. As a result, the Court
is of the opinion that the time the applicants spent in Roma-only
classes appears to fall short of the requirement that their immediate
and automatic transfer be ensured as soon as adequate language
proficiency was attained.
In
the above-mentioned comments in response to the Opinion of the
Advisory Committee on the Framework Convention for the Protection of
National Minorities, the Government stated that “This practice
[of placing of Roma-children in separate classes] is implemented only
in the first and second grade of primary school, after which children
attend classes together with children of other nationalities”
(see paragraph 69 above). The Court also refers to the Opinion on
Croatia of the Advisory Committee on the Framework Convention for the
Protection of National Minorities, adopted on 1 October 2004,
according to which “pupils should not be placed in such
separate remedial classes on the basis of their affiliation with a
national minority but rather on the basis of the skills and needs of
the individuals concerned, and where such placing is found necessary,
it should be for a limited period only” (see paragraph 70
above).
Yet
the applicants in the present case each spent a substantial period of
their education in Roma-only classes. The eleventh to fifteenth
applicants spent all eight years of their schooling in a Roma-only
class, while the second to tenth applicants attended at times both
Roma-only and mixed classes. However, no particular monitoring
procedure was in place. Although some of the applicants at times
attended mixed classes, the Government failed to show that any
individual reports were drawn up in respect of each applicant and his
or her progress in learning Croatian. Such reports appear necessary
in order to ensure objectivity as well as to identify problem areas
which could then be addressed, if needed, with additional measures.
The lack of a prescribed and transparent monitoring procedure left a
lot of room for arbitrariness.
(d) Poor school attendance and high
drop-out rate
One
of the problems highlighted in the reports of the Council of Europe
bodies concerning Croatia was the poor school attendance of Roma
children and their high drop-out rate. In the ECRI report on Croatia,
published on 3 July 2001, it is stated that “many Roma/Gypsy
children do not go to school, having either dropped out or having
never attended” (see paragraph 66 above). This observation was
confirmed in the ECRI report on Croatia, published on 17 December
2004, according to which ”many Roma children leave school at a
very early age” (see paragraph 67 above). The statistics
submitted by the applicants for Međimurje County and not refuted
by the Government show a drop-out rate of 84% cent for Roma pupils
before completing primary education. The applicants in the present
case, without exception, left school at the age of fifteen without
completing primary education. Their school reports show poor
attendance.
While
the Croatian authorities cannot be held to be the only ones
responsible for the fact that so many pupils failed to complete
primary education or to attain an adequate level of language
proficiency, such a high drop-out rate of Roma pupils in Međimurje
County called for the implementation of positive measures in order,
inter alia, to raise awareness of the importance of education
among the Roma population and to assist the applicants with any
difficulties they encountered in following the school curriculum.
Therefore, some additional steps were needed in order to address
these problems, such as active and structured involvement on the part
of the relevant social services. 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. No precise
information was provided on any follow-up.
(e) The involvement of the applicants'
parents
The
Government emphasised the parents' passivity and lack of objections
in respect of the placement of their children in separate classes, as
well as on the fact that they had not requested their transfer to
mixed classes. In this connection the following conclusions reached
in the case of D.H. and Others v. the Czech Republic appear to
be of relevance:
“202. As regards parental consent, the
Court notes the Government's submission that this was the decisive
factor without which the applicants would not have been placed in
special schools. In view of the fact that a difference in treatment
has been established in the instant case, it follows that any such
consent would signify an acceptance of the difference in treatment,
even if discriminatory, in other words a waiver of the right not to
be discriminated against. However, under the Court's case-law, the
waiver of a right guaranteed by the Convention – in so far as
such a waiver is permissible – must be established in an
unequivocal manner, and be given in full knowledge of the facts, that
is to say on the basis of informed consent (Pfeifer and Plankl v.
Austria, judgment of 25 February 1992, Series A no. 227,
§§ 37-38) and without constraint (Deweer
v. Belgium, judgment of 27 February 1980, Series A no. 35,
§ 51).
203. In the circumstances of the present
case, the Court is 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. ...
204. In view of the fundamental importance of
the prohibition of racial discrimination (see Nachova and Others,
cited above, § 145, and Timishev, cited above, § 56),
the Grand Chamber considers that, even assuming the conditions
referred to in paragraph 202 above were satisfied, no waiver of the
right not to be subjected to racial discrimination can be accepted,
as it would be counter to an important public interest (see, mutatis
mutandis, Hermi v. Italy [GC], no. 18114/02, § 73,
ECHR 2006 ...).”
The
same applies to the failure of the applicants' parents in the present
case to raise objections to the placement of their children in
Roma-only classes and their failure to seek their transfer to mixed
classes.
(f) Conclusion
As
appears from the Court's judgment in the case of D.H. and Others
v. the Czech Republic, the documentation produced by ECRI
and the report of the Commissioner for Human Rights of the Council of
Europe on the Human-Rights Situation of the Roma, Sinti and
Travellers in Europe (dated 15 February 2006, see paragraph 72
above), a number of European States encounter serious difficulties in
providing adequate schooling for Roma children. The Croatian
authorities have sought to tackle the problem. However, in their
attempts to achieve the social and educational integration of the
disadvantaged group which the Roma form, they have had to contend
with numerous difficulties as a result of, inter alia, the
cultural specificities of that minority and an alleged degree of
hostility on the part of the parents of non-Roma children. As the
Grand Chamber noted in the above mentioned D.H. and Others v. the
Czech Republic judgment, the choice of the best means to address
learning difficulties of children lacking proficiency of the language
of instruction is not an easy one. It entails a difficult balancing
exercise between the competing interests. As to the setting and
planning of the curriculum, this mainly involves questions of
expediency on which it is not for the Court to rule (see D.H. and
Others, cited above, § 205, and Valsamis v. Greece,
18 December 1996, § 28, Reports 1996-VI).
Nevertheless,
whenever discretion capable of interfering with the enjoyment of a
Convention right is conferred on national authorities, the safeguards
available to the individual will be especially material in
determining whether the respondent State has, when fixing the
regulatory framework, remained within its margin of appreciation (see
Buckley, cited above, § 76, and Connors,
cited above, § 83).
The
facts of the instant case indicate that the schooling arrangements
for Roma children were not sufficiently attended by safeguards that
would ensure that, in the exercise of its margin of appreciation in
the education sphere, the State had sufficient regard to their
special needs as members of a disadvantaged group (see, mutatis
mutandis, Buckley, cited above, § 84, and
Connors, cited above, § 84). Furthermore, as a result of
the arrangements the applicants were placed in separate classes where
an adapted curriculum was followed, though its exact content remains
unclear. Owing to the lack of transparency and clear criteria as
regards transfer to mixed classes, the applicants stayed in Roma-only
classes for substantial periods of time, sometimes even during their
entire primary schooling.
A
very positive aspect is the possibility of further education for Roma
children who failed to complete primary education by the age of
fifteen. After leaving primary school, the applicants had the
possibility of enrolling in the government-funded evening school in
Čakovec (a nearby town) in order to complete their education.
Although all expenses were covered by the Government, only three of
the applicants availed themselves of this opportunity, and only one
actually completed the evening school. However, most of these
developments took place after the period that is to be examined in
respect of the applicants in the present case. They cannot repair the
above-described deficiencies in the applicants' education.
In
sum, in the circumstances of the present case and while recognising
the efforts made by the Croatian authorities to ensure that Roma
children receive schooling, the Court considers that there were at
the relevant time no adequate safeguards in place capable of ensuring
that a reasonable relationship of proportionality between the means
used and the legitimate aim said to be pursued was achieved and
maintained. It follows that the placement of the applicants in
Roma-only classes at times during their primary education had no
objective and reasonable justification.
The
Court therefore finds that in the present case there has been a
violation of Article 14 of the Convention taken together with Article
2 of Protocol No. 1.
In
view of that conclusion, it is not necessary to examine the complaint
under Article 2 of Protocol No. 1 taken alone.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. The Chamber judgment
The
Chamber, in view of the violation found, considered that the
applicants had sustained non-pecuniary damage because the length of
the proceedings before the national courts had exceeded a “reasonable
time”, and that it was therefore appropriate to award them
compensation. Ruling on an equitable basis, it awarded each applicant
1,300 euros (EUR) under this head, plus any tax that might be
chargeable. It also awarded the applicants jointly EUR 2,000 for
costs and expenses, plus any tax that might be chargeable.
B. The parties' submissions
The
applicants claimed EUR 22,000 each in respect of non-pecuniary damage
and EUR 20,316.50 jointly for costs and expenses incurred at domestic
level and before the Court.
The
Government argued that the applicants' claim in respect of
non-pecuniary damage should be rejected. As regards the claim for
costs and expenses in respect of the proceedings before the Court,
the Government deemed it excessive.
C. The Court's assessment
1. Non-pecuniary damage
The
Court considers that the applicants must have sustained non-pecuniary
damage – in particular as a result of the frustration caused by
the indirect discrimination of which they were victims – for
which the finding of a violation of the Convention does not afford
sufficient redress. However, the Court considers the amounts claimed
by the applicants to be excessive. Ruling on an equitable basis, it
assesses the non-pecuniary damage sustained by each of the applicants
at EUR 4,500.
2. Costs and expenses
The
Court reiterates that legal costs are only recoverable to the extent
that they relate to the violation that has been found (Beyeler
v. Italy (just satisfaction) [GC], no. 33202/96, § 27,
28 May 2002). The Court notes that Mrs Kušan, Mr Dobrushi and
Mr Alexandridis have each submitted details of their professional
fees, as well as the costs of translation of the relevant documents.
Having regard to all the relevant factors and to Rule 60 § 2 of
the Rules of Court, the Court makes a joint award to all the
applicants of EUR 10,000 for costs and expenses.
3. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Dismisses unanimously the Government's
preliminary objection as to the applicability of Article 6 § 1
of the Convention to the present case;
Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
Holds by nine votes to eight that there has been
a violation of Article 14 of the Convention read in conjunction
with Article 2 of Protocol No. 1;
Holds unanimously that it is not necessary to
examine the complaint under Article 2 of Protocol No. 1 taken alone;
Holds by twelve votes to five
(a) that
the respondent State is to pay, within three months, the following
amounts, to be converted into Croatian kuna at the rate applicable at
the date of settlement:
(i) to
each applicant EUR 4,500 (four thousand five hundred euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) to
the applicants jointly EUR 10,000 (ten thousand euros), plus any tax
that may be chargeable to the applicants, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicants' claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 16 March 2010.
Vincent
Berger Jean-Paul Costa
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint partly dissenting opinion
of Judges Jungwiert, Vajić, Kovler, Gyulumyan, Jaeger, Myjer,
Berro-Lefèvre and Vučinić is annexed to this
judgment.
J.-P.
C.
V.B.
JOINT PARTLY DISSENTING OPINION OF JUDGES
JUNGWIERT,
VAJIĆ, KOVLER, GYULUMYAN, JAEGER, MYJER, BERRO-LEFÈVRE
AND VUČINIĆ
We
are unable to find a violation of Article 14 of the Convention read
in conjunction with Article 2 of Protocol No. 1 in the present case.
I.
We
agree with the majority on the principles laid down in §§
146, 149, 150 and 156 of the judgment. Particularly, we accept that
indirect discrimination shall be taken to occur where an apparently
neutral provision, criterion or practice would put persons of an
ethnic origin at a particular disadvantage compared with other
persons, unless it is objectively justified by a legitimate aim and
the means of achieving that aim are appropriate, necessary and
proportionate.
II.
We
do not agree with the majority as to the application of the above
principles to the case at issue and the conclusion that there has
been no objective and reasonable justification for the measures
applied to the applicants.
First
of all, the applicants do not argue that their command of the
Croatian language at their enrolment in primary school was adequate –
they have never objected to the Government's assertion that they
lacked the required level of language proficiency. (In respect of the
applicants enrolled in the Macinec Primary School, the enrolment
procedure included the psycho-physical appraisal of the children by a
panel composed of a physician, a psychologist, a school counsellor
(pedagog), a defectologist and a teacher, in the presence of
at least one of the child's parents.) Thus we accept that the
applicants did not have a sufficient command of the Croatian language
to follow lessons in that language.
Secondly,
it is accepted that decisions pertaining to the methods used to
address special needs of certain pupils belong to the sphere of
social policy, in which States enjoy quite a wide margin of
appreciation. Therefore placing the applicants in separate classes as
a means of addressing their special needs is not as such contrary to
the Convention, either from the standpoint of Article 2 of Protocol
No. 1 or from that of Article 14 of the Convention.
As
stated in the judgment, the proportion of Roma children in the lower
grades in Macinec Primary School varies from 57 to 75%, while in
Podturen Primary School it varies from 33 to 36%. We accept that the
large number of Roma pupils in the two primary schools concerned, and
in particular in Macinec Primary School, was an obstacle to creating
mixed classes in certain grades with a view to achieving integration
amongst the pupils concerned. Notwithstanding these difficulties, the
Roma-only classes were not established as a rule but only in cases
where the percentage of Roma pupils was sufficient to form such
classes.
Thus
in the Podturen school, out of 47 Roma pupils only 17 were placed in
a Roma-only class, while 30 were in mixed classes (§ 11 of the
judgment). In the Macinec school, there were 194 Roma pupils in 2001,
142 of whom were placed in six Roma-only classes, while 52 attended
mixed classes (§ 15 of the judgment).
The
language deficits and other difficulties in the case at issue,
according to school records (see §§ 21-51 of the judgment),
went hand in hand with obvious lack of parental support. It cannot be
denied that the slow linguistic development and progress in the
applicants' case was to a large degree due to their very poor school
attendance (§§ 176-177 of the judgment), which would
equally have upset the majority's progress in mixed classes in
respect of all school subjects.
In
this connection, it is to be noted that the authorities attempted to
address these problems by organising regular parent-teacher meetings
at class level, as well as individual parent-teacher meetings with
the applicants' parents. They also organised visits of Roma
assistants to the pupils' homes in order to stress the importance of
regular schooling. However, the applicants' parents rarely responded
to such efforts. The role of the parents in these matters cannot be
underestimated. Regular school attendance depends on cooperation
between school authorities and the children's parents, who are
primarily responsible for their children. The report of the
Commissioner for Human Rights also stressed that: “... it rests
with the parents to ensure the sound learning of the language and
their children's regular attendance for the entire school course”
(see § 72 in fine of the judgment).
To
assess the proportionality of the measures taken, it is important to
point out that the setting and planning of the curriculum fall in
principle within the competence of the Contracting States. The
regulation of educational institutions may vary in time and in place,
inter alia, according to the needs and resources of the
community and the distinctive features of different levels of
education. Consequently, the Contracting States enjoy a certain
margin of appreciation in this sphere (see Leyla Şahin, §
154).
The
authorities were faced with a situation where in a small community a
large number of children belonging to the Roma minority at the time
of their enrolment in primary school did not have sufficient command
of the language of instruction. They had to contend with numerous
difficulties as a result of, inter alia, the cultural
specificities of that minority. The choice between various
possibilities to tackle the situation at hand entailed a difficult
balancing exercise between the competing interests. On the one hand
the interest of the applicants and other Roma children who did not
speak the Croatian language was to acquire, as soon as possible,
proficiency in the language of teaching and thus become able to
follow the teaching. On the other hand the pupils, both Croatian and
Roma, who did speak Croatian, had an interest in not being held back
too much in their education owing to the insufficient linguistic
proficiency of a very large number of other pupils.
Moreover,
we stress that it may indeed be difficult to organise teaching in
mixed classes where a high percentage or even a majority of pupils do
not have sufficient knowledge of the language of teaching. In such a
situation where a high percentage or a majority of pupils have
special needs, it is obvious that the teaching has to be adapted to
their needs, particularly when they share a common language among
themselves. However, this may affect the interests of other pupils
who do not have such needs and whose progress may thus be impeded. In
such a situation the State authorities are confronted with the duty
to ensure a fair distribution of available resources among both
groups of pupils. We accept that for this reason as well their
placement in the same class could be justified from a pedagogical
point of view, as it is known that children are considered to learn
best in stable surroundings, and this is also why parents are often
reluctant to make their children change classes. That argument should
not have been set aside without balancing also the interests of the
Croatian-speaking children: the importance for Croatian-speaking
pupils of being able to progress properly at school is not mentioned
at all in the judgment.
By
keeping Roma children in ordinary schools, the Croatian authorities
made the change from a separate class to a mixed class quite flexible
and allowed the change to be made without formalities. Thus the
majority of the applicants in the present case attended both
Roma-only and mixed classes and shared with other pupils the same
common school facilities, such as canteen and playgrounds, as well as
various extracurricular and social activities (see also §§ 134
and 135 of the judgment).
The
schools attended by the applicants are regular educational
establishments, forming part of the system of public primary schools
in Croatia. All pupils who complete any of these schools are
considered as having succeeded in acquiring full primary education
and they all receive a final certificate in standard form. Those
pupils who at times or during their entire primary education attend
Roma-only classes and successfully complete final grade also receive
the same standard final certificate which in no way indicates that
they attended some special, separate classes. All certificates on the
completion of primary education have equal standing as regards the
possibility of enrolling in secondary schools or finding employment.
Thus, the fact that the applicants attended Roma-only classes could
not, as such, in any way have impeded or undermined their prospects
of further education. All those who complete primary school have the
same possibilities of reaping the benefits of their education.
It
is thus important to stress that the applicants were at no time
deprived of the right to attend school and receive an education. They
were all enrolled in the primary schools concerned at the age of
seven, the normal age to start mandatory primary education in
Croatia. They all stayed in primary school until they reached the age
of fifteen and then left on their own initiative since there was no
further obligation for them to attend school.
Furthermore,
there was a possibility of continued education in evening classes for
pupils who had not completed primary education by the age of fifteen.
Although the full cost of this education was borne by the State, only
the third, fourth and sixth applicants made use of this opportunity
and only the third applicant actually completed the evening school,
while the fourth and sixth applicants, although enrolled, failed to
attend classes.
Therefore,
it is not shown in this case that the applicants were put at a
particular disadvantage compared with other pupils by their placement
in Roma-only classes at times during their primary education.
III.
The
present case is thus not about the situation of a minority in general
but about a concrete question of education practice (in two schools)
in respect of a minority insufficiently conversant with the language
of instruction, and the measures taken by the domestic authorities to
deal with such a situation. The case can clearly be distinguished
from D.H. and Others v. the Czech Republic ([GC], no.
57325/00, ECHR 2007 ...) and Sampanis and Others v. Greece
(no. 32526/05, 5 June 2008), as the majority is well aware. The
majority also accepted the fact that the statistical data in the
present case did not suffice to establish that there was prima
facie evidence that the effect of a measure or practice was
discriminatory (§§ 151-152). We agree that indirect
discrimination may be proved without statistical evidence (§
153). Yet then the facts would have to show that the effect of the
practice had an adverse impact on the applicants and could not be
justified on other grounds.
It
would seem that the majority viewed the case in the first place as a
means of further developing the notion of indirect discrimination in
the Court's jurisprudence. To be able to do so it was, however,
obliged to lean on arguments outside the concrete facts, referring to
the situation of the Roma population in general (see, for example, §§
147, 148, 176 and 177 of the judgment). As a result, this became in
some respects more a judgment on the special position of the Roma
population in general than one based on the facts of the case, as the
focus and scope of the case were altered and interpreted beyond the
claims as lodged by the applicants before the Court. In adopting this
approach, however, the majority neglected the criteria previously
elaborated by the Court itself in respect of the right to education
under Article 2 of Protocol No. 1 to the Convention (§ 146 of
the judgment).
Although
it is accepted that education by integration is definitely a very
important concept, it is, however, to be noted that there are no
general recommendations of best practices in such a situation and
that States have to use their margin of appreciation to resolve such
very important and concrete problems on the spot as they are the best
placed for that task.
In
addition the majority has not taken into consideration at all that
one of the rights of a minority consists in “preserving
diversity” (see § 148 of the judgment) and that separation
is therefore not always considered to be harmful, especially when
accompanied – as in the given situation – by various
social activities and measures organised in the common school.
IV.
We
are satisfied that in the present case, as pointed out by the
Constitutional Court, it was not shown that the allegedly different
treatment of the applicants was based on their ethnic origin or any
other “suspect” grounds, but rather exclusively on their
insufficient command of the language, which means on pedagogical
grounds. In such circumstances a wider margin of appreciation is
allowed to the State authorities in employing methods of addressing
the applicants' learning difficulties. Once it has been established
that the applicants lacked sufficient command of the Croatian
language, the choice of means to address that problem lay with the
State authorities. Therefore, and regard being had to the margin of
appreciation afforded to the national authorities in the field of
education (see, mutatis mutandis, Sampanis and Others,
cited above, § 92 in fine), we consider that the
placement of the applicants in Roma-only classes at times during
their primary education in the circumstances of the present case had
a legitimate aim pursued by acceptable means for a limited period
without discernable alternatives at hand. In other words, there
existed an objective and reasonable justification.
V.
We
would also like to stress that in a situation like the present one in
which the Court is overruling a well-reasoned judgment by a
Constitutional Court, as well as a unanimous judgment of one of its
Chambers, by adopting a Grand Chamber judgment by a nine to eight
vote, it should have presented more convincing arguments to justify
its decision. In addition, it would have been useful if the Court had
been willing to offer more practical guidance on how to develop and
apply the notion of indirect discrimination. As it stands, without
any clear indications on the matter, it could appear that the
majority simply used its own discretion to replace a decision of the
highest national court with its own. In so doing, the Court runs the
risk of being told that it took upon itself the task of the national
courts. Particularly so in a situation where the Constitutional
Court's reasoning was based on the principles of the Convention and
where its indications to the domestic authorities were clear. Thus,
the present example well illustrates that when it comes to cases
where the Court declares that a certain margin of appreciation is to
be left to the States, it should be particularly careful not to
overstep its role, especially when a large number of judges in the
Court have expressed their support for the Constitutional Court's
approach.
Be
that as it may, it will certainly not be easy for the respondent
State or any other State party to the Convention faced with schooling
problems in relation to minority groups to follow the present
judgment.
A N N E X
LIST
OF THE APPLICANTS
|
|
NAME
|
DATE OF BIRTH
|
RESIDENCE
|
|
1.
|
Stjepan Oršuš
|
22 December 1991
|
Orehovica
|
|
2.
|
Mirjana Oršuš
|
30 September 1990
|
Podturen
|
|
3.
|
Gordan Oršuš
|
16 June 1988
|
Podturen
|
|
4.
|
Dejan Balog
|
10 November 1990
|
Podturen
|
|
5.
|
Siniša Balog
|
25 January 1993
|
Podturen
|
|
6.
|
Manuela Kalanjoš
|
12 February 1990
|
Podturen
|
|
7.
|
Josip Oršuš
|
25 February 1993
|
Podturen
|
|
8.
|
BiljanaOršuš
|
20 April 1990
|
Podturen
|
|
9.
|
Smiljana Oršuš
|
6 April 1992
|
Podturen
|
|
10.
|
Branko Oršuš
|
10 March 1990
|
Podturen
|
|
11.
|
Jasmina Bogdan
|
11 May 1990
|
Trnovec
|
|
12.
|
Josip Bogdan
|
13 September 1991
|
Trnovec
|
|
13.
|
Dijana Oršuš
|
20 January 1994
|
Trnovec
|
|
14.
|
Dejan Oršuš
|
2 August 1991
|
Trnovec
|
|
15.
|
Danijela Kalanjoš
|
7 October 1993
|
Trnovec
|
