Kosa v. Hungary
Collective claims for Roma education discrimination
Thousands of Europeans become victims of discrimination every day. But few can afford to bring legal actions for redress. European law has developed to allow collective claims to be brought to challenge systemic discrimination. Amanda Kośa is a young student who was forced to go to a Roma-only school when the local authority canceled a local bus service that enabled her to attend an integrated school. The Chance for Children Foundation, a Hungarian NGO devoted to Roma education rights, brought a case in the domestic courts on behalf of all the schoolchildren affected by the decision, arguing that the decision was discriminatory. The Hungarian courts rejected the claim. Amanda Kośa now seeks to bring a case to the Strasbourg Court, which will have to decide whether the measures constitute education discrimination, and whether an individual can directly approach the Strasbourg Court after a domestic collective claim has been taken by an anti-discrimination NGO.
Roma students living in the town of Huszar telep have been forced to attend a new Roma only school, because the bus service to a local integrated school was shut down.
The Chance for Children Foundation (CFCF) took a case alleging discrimination on behalf of the students, using the collective redress procedures of Hungary’s Equal Treatment Act. This mechanism allows an NGO to take action on behalf of an indeterminate group of Roma victims. The case ended up before Hungary’s Constitutional Court, which found that the NGO did not have standing to bring the case. The European Court of Human Rights rejected the case on the procedural ground that the NGO was not “directly affected” by the measure in question.
Amanda Kósa, one of the individual students affected by the decision, then brought a case directly to the European Court of Human Rights, without having participated as an individual applicant in domestic proceedings. She was helped by the CFCF to bring the case.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative filed a third-party intervention to the European Court on the specific question of whether the applicant (who did not directly participate in the domestic collective redress proceedings) has exhausted domestic remedies, a general requirement before going to the Strasbourg Court. The Justice Initiative argued that there is good reason for the Court to find that a victim of discrimination who was part of the class represented by a valid domestic collective redress process has exhausted domestic remedies.
Other interventions were made by the European Roma Rights Centre, and South Africa’s Legal Resources Centre.
The Justice Initiative made the following arguments:
Collective Redress and “actio popularis”. The European Court has long rejected public interest claims by persons who are not affected by the measure in question, which the Court describes as “actio popularis” claims. However, CFCF’s claim should be characterized as a more limited type of collective claim that requires, amongt other things, CFCF’s purpose to be concerned with equality for disadvantaged groups.
Developments in European Anti-Discrimination Practice. This type of limited collective claim, that requires organizations to demonstrate that their purpose is to represent the interests of the victim class, is an increasingly recognized mechanism within European countries, particularly for discrimination claims, but also for other areas including consumer law and environmental law.
Effective Anti-Discrimination Laws. Such collective claims enable the practical and effective realization of Convention rights, particularly in relation to structural discrimination or discrimination against large groups. To organize individual victims to seek redress would be impractical and expensive, and would not fully illustrate the systemic character of the discrimination in question.
Collective Redress beyond Membership Organizations. The Court should admit claims by individuals who were intended beneficiaries of these collective claims. To do so, the Court should extend the principles from a similar line of cases, which allowed members of an organization to take cases direct to Strasbourg, where the organization took a domestic case on their behalf.
The Open Society Justice Initiative submits a third-party intervention to the European Court of Human Rights.
Amanda Kosa, an individual, lodges an application with the European Court of Human Rights. She is being represented by CFCF. The case is communicated to Hungary on June 17, 2016.
The European Court of Human Rights declares inadmissible CFCF’s complaint that their lack of access to a court in their constitutional complaint amounted to a violation of Art. 6(1) of the European Convention on Human Rights.
CFCF’s complaint with the Constitutional Court is declared inadmissible for lack of standing, since the organization was not directly affected by the alleged violation of constitutional rights.
Similarly, the Hungarian Supreme Court (Kuria) dismisses CFCF’s request as to termination, despite finding that the Municipality exercised discriminatory treatment against children both on the basis of their ethnic origin and financial situation.
The Győr Court of Appeal, acting as a second-instance court, upholds the first-instance decision as to the findings of discrimination on the basis on ethnic origin, but reverses it concerning termination of the situation.
The Court delivers judgment, recognizing CFCF’s standing to introduce the claim in the name of the children concerned, finds that the Municipality segregated Romani children in primary school education on the basis on their origin and social situation, and orders it to terminate the unlawful situation.
The Chance for Children Foundation files a collective redress claim with the Győr-Moson-Sopron County Regional Court under Hungary’s Equal Treatment Act. It sues the Municipality of Győr for the alleged segregation of Romani children in a local primary school.
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