D.H. and others v. The Czech Republic (application no. 57325/00)
Between 1996 and 1999, the applicants were placed in special schools (zvláštní školy) in Ostrava, either directly or after a period in an ordinary primary school (základní školy). Special schools are a category of specialised schools (speciální školy) and are intended for children with learning disabilities who are unable to attend “ordinary” or specialised primary schools. By law, the decision to place a child in a special school is taken by the head teacher on the basis of the results of tests to measure the child’s intellectual capacity carried out in an educational psychology and child guidance centre and requires the consent of the parent or legal guardian of the child. The applicants’ parents consented, and in some instances expressly requested their children’s placement in a special school. On June 29 1999 the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a primary school. Four of the applicants were successful in aptitude tests and now attend ordinary schools.
The applicants lodged an appeal with the Czech Constitutional Court in 1999 alleging that the practice had resulted in de facto racial segregation and discrimination that was reflected in the existence of two independent educational systems for members of different racial groups, namely special schools for the Roma and “ordinary” primary schools for the majority of the population. That difference in treatment was not based on any objective and reasonable justification, amounted to degrading treatment and had deprived them of the right to education (as the curriculum followed in special schools was inferior and pupils in special schools were unable to return to primary school or to obtain a secondary education other than in a vocational training centre). The applicants argued that they had received an inadequate education and an affront to their dignity and asked the Constitutional Court (Ústavní soud) to find a violation of the rights they had relied on, to quash the decisions to place them in special schools, to order the respondents (the special schools concerned, the Ostrava Education Authority and the Ministry of Education) to refrain from any further violation of their rights and to restore the status quo ante by offering them compensatory education. The Constitutional Court dismissed the applicants’ appeal, partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it. The applicants lodged an application with the ECHR on 18 April 2000, alleging a violation of Article 14 (non-discrimination provision) in conjunction with Article 2 of Protocol No. 1. (the right to education).
The Court found no violation of Article 14 in conjunction with Article 2 of Protocol No. 1. It based its decision on the three following grounds. First, it found that the rules governing children’s placement in special schools did not explicitly refer to the pupil’s ethnic origin and was pursuing the legitimate aim of adapting the educational system to the needs and aptitudes or disabilities of the children. Given that the parties did not dispute that the tests in the instant case were administered by qualified professionals, it would be difficult for the Court to go beyond this factual finding and to ask the Government to prove that the psychologists who examined the applicants had not adopted a particular subjective attitude. Second, the Court took the view that the fact that some of the applicants were transferred to ordinary schools proves that, contrary to what has been alleged by the applicants, the situation was not irreversible. Finally, as to the applicants’ argument that the parental consent was not “informed” the Court noted that it was the parents’ responsibility, as part of their natural duty to ensure that their children receive an education, to find out about the educational opportunities offered by the State, to make sure they knew the date they gave their consent to their children’s placement in a particular school and, if necessary, to make an appropriate challenge to the decision ordering the placement if it was issued without their consent.
In its judgment, the Court acknowledged the general principle of indirect discrimination, stating that if a policy or general measure has disproportionately prejudicial effects on a group of people, the possibility of its being considered discriminatory cannot be ruled out even if it is not specifically aimed or directed at that group. The Court further acknowledged that the statistics presented during the case disclose figures that are worrying and that the general situation in the Czech Republic concerning the education of Roma children is by no means perfect. Nevertheless, the Court stated both that statistics are not sufficient to disclose a practice which could be classified as discriminatory, and that it is not its task to assess the overall social context of a country, but simply to examine the individual applications before it.
The ECHR decision to ignore the evidence of indirect racial discrimination by a 6-1 majority represents not only a setback for those working for the improvement of the situation of the Roma, but also for the crystallization of non-discrimination norms in Europe. Moreover, its refusal to allow statistical evidence to play a more significant role in the case disregards an important purpose of prohibiting indirect discrimination – that of exposing the entrenchment of discrimination within the structures and institutions of our societies.