Case of DH and Others v. The Czech Republic, App. No. 57325/00, (Grand Chamber final judgment) (13 November 2007)
In this case, applicants challenged the disproportionate classification of Roma school children in the Czech Republic as having special education needs. They also challenged their segregation into schools for children with “Light Mental Disabilities”.
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).
The Grand Chamber held that there had been indirect discrimination against the applicants in the context of education.
Recognizing the Roma as a vulnerable minority requiring special protection, 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”. In addressing the issue of parental consent, the Court underscored that the right not to be subjected to racial discrimination cannot be waived.
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. 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 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 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.
Over the years, national and international NGOs launched various initiatives to push for implementation, including reporting to the Council of Europe Committee of Ministers, advocacy before UN treaty bodies, publications and national level events.
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. Since the launch of the first enrollment campaign in 2014, community organizers 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.
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 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.