Case of DH and Others v. The Czech Republic, App. No. 57325/00, (Grand Chamber final judgment) (13 November 2007)

Nature of the Case

In this case, applicants challenged the disproportionate classification of Roma school children in the Czech Republic as having special education needs as well as their segregation into schools for children with “Light Mental Disabilities”. The European Court of Human Rights (ECtHR) decided that school practices constituted indirect discrimination against the applicants and violated their human right to education under the European Convention of Human Rights (ECHR). The sustained, bottom-up, participatory model approach to implementation of this case is starting to demonstrate positive results in terms of enforcement. (Summary written with drafting contributions from Ostalinda Maya, Open Society Justice Initiative)

Summary

The applicants were Czech children of Roma descent, between nine and 15 years old, who had been placed in “special schools” for children with mental disabilities between 1996 and 1999. Their situation was not unique. In 1999, the probability of a Roma child of being assigned to a “special school” was more than 27 times higher than for a non-Roma child.

The applicants argued before the ECtHR that segregation based on race or ethnic origin consisted a violation of the right to education, recognized in Article 14 of the ECHR (prohibition of discrimination), read in connection with Article 2 of Protocol 1 (right to education). They also argued it was a violation of the right to fair trial, recognized in Article 6 of the ECHR, and of Article 3, regarding degrading treatment. The complaints under Articles 3 and 6 were declared inadmissible.

In 2007, the Grand Chamber of the ECtHR held that there had been indirect discrimination against the applicants in the context of education, finding a violation of Article 14 read in conjunction with Article 2 of Protocol 1. The ruling emphasized that the Convention addressed not only specific acts of discrimination against individuals, but also structural arrangements and institutionalized practices that violated the human rights of racial or ethnic groups.

Recognizing the Roma as a vulnerable minority requiring special protection, the Court noted that this case warranted particular attention. The Court held that it was not “satisfied that the difference in treatment between Roma children and non-Roma children was objectively and reasonably justified and that there existed a reasonable relationship of proportionality between the means used and the aim pursued” (para. 208). In addressing the issue of parental consent, the Court underscored that the right not to be subjected to racial discrimination cannot be waived, as it would be counter to an important public interest.

The ECtHR explicitly applied the principle of indirect discrimination (paras. 185-195), clarifying that such discrimination may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group. Indirect discrimination does not necessarily require discriminatory intent (para. 194). The Court noted that in assessing the impact of a measure or practice on an individual or group, reliable and significant statistics may be accepted (but are not essential) to constitute prima facie evidence of indirect discrimination. The Court affirmed that prima facie establishment of discrimination shifts the burden of proof “to the respondent State, which must show that the difference in treatment is not discriminatory” (para. 189). The Court also recognized that “it would be extremely difficult in practice for applicants to prove indirect discrimination without such a shift in the burden of proof” (para. 189).

The Court referenced relevant human rights jurisprudence extensively, including international human rights treaties, for example, the Convention on the Rights of the Child, the general comments/recommendations of UN treaty bodies, and comparative case law.

Under Article 41 (just satisfaction), the Court awarded 4000 euros to each applicant as non-pecuniary damages, and 10,000 euros jointly for costs and expenses.

Enforcement of the Decision and Outcomes

Over the years, national and international NGOs launched various initiatives to push for implementation, including reporting to the Council of Europe Committee of Ministers (the body which supervises member state execution of ECtHR decisions), advocacy before UN treaty bodies, publications and national level events. These efforts kept the issue on the agenda but unfolded with little leadership or participation of Roma, many of whom were not even aware of the decision or implementation efforts. In practice, little to nothing changed for Roma children.

In 2013, it became obvious that the issue would not be addressed if those most affected by it – Roma families – were not at the forefront of pushing for change. The Open Society Foundations (OSF) initiated a project in the applicants’ home town to support Roma parents who want to organize themselves to challenge all forms of ethnic discrimination in education. Parents came together to strategically target discrimination during the enrollment process and the first year of primary school, as disproportionate numbers of Roma children were still being assigned to practical or low quality, majority Roma schools at that stage. Since the launch of the first enrollment campaign in 2014, community organizers (with the support and mentorship of the OSF’s Justice Initiative and Roma Initiatives Office) have helped Roma families enroll nearly 200 children in mainstream, good quality education, in turn diverting financial resources away from schools that offer very poor educational outcomes. The campaign consists of an organized enrollment process backed up by the threat of litigation, to strengthen parents’ positions vis-a-vis schools and municipalities. The parents prepare themselves through community organizing training, legal education about their rights, and tactics to resist pressure by teachers to enroll in substandard schools. Monitors (usually Roma parents themselves) collect evidence during enrollment to support any necessary litigation. In September 2016, the special educational curricula were formally abolished. In March 2017, a discrimination case was won in the regional court in March 2017.

However, as Roma children continue to be assigned to substandard schools, continued advocacy and organizing remains vital. The parents’ group is engaged in legal advocacy with the European Commission in connection with infringement proceedings against the Czech Republic regarding continuing education discrimination. They are in the process of registering Awen Amenca, which will become the first Roma parents association in Europe, and plan to expand their activities by supporting Roma parents in other parts of the Czech Republic to promote inclusive education for all children.

Significance of the Case

This landmark ruling was the first to challenge structural racial segregation in education at the ECtHR. The decision, demonstrating a substantive conception of equality, contributes notably to the rich jurisprudence on discrimination in education. Further, for the first time the Court explicitly applied the principle of indirect discrimination, clarifying its position on the use of statistics and the impact on burden of proof, modeling a strategy for segregated minorities to challenge other forms of indirect discrimination in other contexts. The principle has been utilized by the European Commission to pressure the Czech Republic and other countries in Europe to pass legislation making indirect discrimination illegal.

The collective rather than individual approach of the case is particularly important in the broader context of ongoing discrimination against Roma across Europe. Given that many Roma continue to live in conditions of severe poverty and confront serious barriers to fundamental rights enjoyment, access to education is vital. The UN Committee on Economic, Social and Cultural Rights has described education as “both a human right in itself and an indispensable means of realizing other human rights.”

The sustained, bottom-up, participatory model of implementation continues to inspire parents and allies to challenge the very prevalent discrimination in the educational systems of the Czech Republic and in many countries across Europe.

Groups Involved in the Case

European Roma Rights Centre and Open Society Justice Initiative. Third party interventions submitted by Step by Step Association, Roma Education Fund, European Early Childhood Education Research Association, Minority Rights Group International, The European Network Against Racism, European Roma Information Office, INTERIGHTS, Human Rights Watch and Federation Internationale des Ligues des Droits de l’Homme. Other NGOs, such as Amnesty International, have been supporting the infringement proceedings against the Czech Republic through periodic monitoring research and advocacy.