Historic Deliberations in Roma Rights Cases at Europe's Premier Human Rights Tribunal

STRASBOURG—In the space of one week, on February 23 and March 1, 2005, the European Court of Human Rights in Strasbourg, France, will hear oral argument in two of the most important cases in its history concerning racial violence and discrimination against Roma. The cases raise questions of fundamental importance for the future of a Europe that is increasingly diverse and multiethnic.

The February 23 argument, in the case of Nachova v. Bulgaria, concerns the July 19, 1996, shooting death by military police soldiers of two Roma conscripts. The victims, recently absconded from a military construction crew, were known to be unarmed and not dangerous. The killing, by automatic weapon fire, took place in broad daylight in a largely Roma neighborhood, where the grandmother of one of the victims lived. Immediately after the killing, a military police officer allegedly yelled at one of the town residents, "You damn Gypsies!" while pointing a gun at him.

Relatives of the victims, represented by counsel, sought redress before the European Court. In February 2004, the First Section Chamber of the Court, consisting of seven judges, unanimously found that both the shootings and a subsequent investigation which upheld their lawfulness were tainted by racial animus. In particular, the court found breaches of the right to life (Article 2 of the European Convention) and nondiscrimination (Article 14). The judgment, the first in the court's history to find a violation of Article 14 on grounds of racial discrimination, made clear that the right to nondiscrimination has both substantive and procedural components. The court ruled that the importance of the prohibition against discrimination and the difficulties of proof are such that, in certain cases, it may, when examining complaints alleging discrimination, draw negative inferences or shift the burden of proof to the respondent government.

On the request of the Bulgarian government, the court's grand chamber agreed to review the initial panel decision. Amicus briefs have been filed by the European Roma Rights Center, Interights, and the Open Society Justice Initiative.

On March 1, the court will hear argument in the second case, D.H. and Others v. Czech Republic. The first challenge to systematic racial segregation in education in Europe to reach the Strasbourg Court, this case has been brought by 18 Roma children from the city of Ostrava in the Czech Republic. All were placed in "special" remedial primary schools for those deemed mentally deficient.

The complaint in this case, submitted to the Court in 2000 by the European Roma Rights Center, builds on intensive qualitative and quantitative research into the situation of Roma in Czech schooling. That research has revealed racial disparities of shocking proportions:

• Over half of the Romani child population is schooled in remedial special education;
• Over half of the population of remedial special schools is Romani
• Any randomly chosen Romani child is more than 27 times more likely to be placed in schools for the mentally disabled than a similarly situated non-Romani child;
• Even where Romani children manage to avoid the trap of placement in remedial special schooling, they are most often schooled in substandard and predominantly Romani urban ghetto schools;
• European Roma Rights Center, research further found that standardized testing—the principal justification for high rates of placement in remedial special schooling—generally takes place only after a child has already been marked for assignment to remedial schools. The expert "test" is often a stamped seal on the decisions of school directors who will not accept Romani children into mainstream, quality schools.

The children note in their submissions to the court that assignment to special school forever relegates them to second class citizenship. Students in special schools receive a markedly inferior education. Most graduates are shunted into vocational secondary schools limited to training in basic manual skills. Few Roma attend university. Romani unemployment rates in the Czech Republic, as in much of Europe, far exceed those for the rest of the population.

Current educational arrangements in the Czech Republic also fail entirely to prepare ethnic Czech children for life in multicultural societies. In Ostrava, the Czech Republic's third city, despite the fact that Roma comprise approximately 10 percent of the local population, more than 15,000 Czech children of primary school age attend school every day without meeting a single Romani classmate.

The 18 applicants in the case are represented by the European Roma Rights Centre and local counsel. In challenging their racial segregation, the applicants have asked the Court to find that they have been subjected to degrading treatment in breach of Article 3 of the Convention, and to denial of their rights to—and racial discrimination in access to—education, in breach of Article 14 taken together with Article 2 of Protocol 1.

An amicus brief has been filed by Interights and Human Rights Watch.