D.H. and Others v. Czech Republic
Ethnic Segregation of Schoolchildren
This case was the first challenge to systemic racial segregation in education to reach the European Court of Human Rights. When this case was brought, Roma children in the Czech Republic were 27 times more likely to be placed in "special schools" for the mentally disabled than non-Roma children. In 2007, the European Court of Human Rights ruled that this pattern of segregation violated nondiscrimination protections in the European Convention on Human Rights. Despite this landmark decision, there has been little change: the "special schools" have been renamed but still follow the same substandard curriculum; Roma continue to be assigned to these schools in disproportionate numbers; and attempts to challenge the biased attitudes of teachers and parents have been minimal. The process of integration has barely begun.
Facts
Racial segregation in education remains widespread throughout the Czech Republic and in many European countries. Research by the European Roma Rights Centre (ERRC) and reports by monitoring organs of the Council Europe have consistently documented the separate and discriminatory education of Roma, as well as additional practices by educational authorities that result in the segregation of Roma children in schools.
These practices include: segregation in so-called "special" schools for children with developmental disabilities; segregation in Roma ghetto schools; segregation in all-Roma classes; and denial of Roma enrollment in mainstream schools. Whatever the particular form of separate schooling, the quality of education provided to Roma is invariably inferior to mainstream education in each country.
The eighteen applicants before the European Court of Human Rights were all school children from the town of Ostrava. They were Czech nationals of Roma descent, born between 1985 and 1991 and therefore nine to fifteen years old at the time of the application in 2000. Between 1996 and 1999 they were placed into "special schools" for children with mental disabilities. The decision to place them in these schools was made by the head teacher on the basis of a psychological examination, and with the consent of the child's parent or guardian.
Statistics presented to the court demonstrated the segregated nature of schools in Ostrava, concluding that in the year 1999:
- Over half of Roma children were placed in "special schools."
- Over half of the students in "special schools" were Roma.
- Any randomly chosen Roma child was more than 27 times more likely to be placed in a "special school" than a non-Roma child.
- Even where Roma children managed to avoid the trap of placement in "special schools," they were most often enrolled in substandard and predominantly Roma urban ghetto schools.
Once these children had been streamed into substandard education, they had little chance of accessing higher education or steady employment opportunities. Attempts to remedy the situation in the domestic courts failed.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative acted as co-counsel before the Second Section of the European Court of Human Rights and then before the Grand Chamber, presenting oral arguments in support of the applicants. Key word: litigation
Arguments
Racial discrimination. The segregation amounted to a discriminatory denial of the right to education, in breach of Article 14 ECHR (non-discrimination), taken together with Article 2 of Protocol 1 (education).
Degrading treatment. The segregation was so severe as to amount to degrading treatment in breach of Article 3 ECHR (inhuman/degrading treatment).
No judicial review. The absence of adequate judicial review of the decision to assign them to "special schools" violated the right to a fair trial in Article 6 ECHR (fair trial).
Second Section Decision, February 2006
The Second Section of the European Court of Human Rights found no evidence of discrimination against the applicants, based upon three factors. First, that the system of special schooling was not established solely to cater for Roma children, but with the legitimate aim of assisting children with slight mental disabilities to obtain a basic education. Second, tests for placement in the school were administered by professional psychologists, and it was not the role of the court to go behind the established facts of the case and require the government to show that individual psychologists had not adopted a discriminatory approach to these particular children. Third, the applicants' parents failed to appeal against the decisions to place their children in special schools and in a number of the cases the parents had requested that their children be transferred to a special school.
Grand Chamber Decision, November 2007
The Grand Chamber held by 13 votes to 4 that there had been indirect discrimination against the school children in the provision of education, finding a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights read in conjunction with Article 2 of Protocol 1 (right to education). The decision held that disproportionate assignment of Roma children to special schools without an objective and reasonable justification amounted to unlawful discrimination. However, perhaps the most groundbreaking element of the court's decision was that it explicitly embraced the principle of indirect discrimination, reasoning that a prima facie allegation of discrimination shifts the burden to the defendant state to prove that any difference in treatment is not discriminatory.
Implementation
The court required the Czech Republic to adopt "general and/or, if appropriate, individual measures" in order to end the discrimination against Roma in the Czech education system. As a result of the judgment of the Grand Chamber, the case was transferred to the Committee of Ministers of the Council of Europe to ensure the implementation of the decision—"to put an end to the violation found by the Court and to redress so far as possible the effects."
Committee of Ministers
The body charged with implementing the judgment meets periodically to consider the actions that have been taken by the government of the Czech Republic. At their meeting in June 2009, they decided that more information was needed on the impact of the 2005 Czech School Act in practice, as well as with regard to dissemination of the judgment and awareness-raising of all actors concerned. The Committee of Ministers considered the case in December 2010 and is expected to review the progress of implementation in June 2011.
The Justice Initiative has submitted five memos to the Committee of Ministers highlighting its concerns. Issues include:
Continuing Segregation. Across the country as a whole, government statistics confirm that nearly 30 percent of Roma continue to be placed in re-named "special schools," compared with only 2 percent of non-Roma. In specific regions the figures are worse. Once children are assigned to special schools, their chance of transferring to standard schools is virtually nil.
Failure to Take Measures for Effective Integration. New laws introduced by the government are inadequate and have had little effect. Special schools have merely been re-named as "practical primary schools." Positive measures suggested by the court such as preparatory classes have been underutilized.
The Grand Chamber finds a violation of the European Convention on Human Rights.
Oral argument before the Grand Chamber. The case for the applicants was argued by Anthony Lester QC, James A. Goldston, and David Strupek.
Grand Chamber grants the request for referral.
Applicants petition for referral of the case to the Grand Chamber.
Judgment of the European Court of Human Rights, Second Section, finding no violation.
Application submitted to the European Court of Human Rights.
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