SECOND SECTION
CASE OF ELMAZOVA AND OTHERS v. NORTH MACEDONIA
(Applications nos. 11811/20 and 13550/20)
 
 
JUDGMENT
Art 14 (+ Art 2 P1) • Right to education • Discrimination of Roma pupils on account of their segregation in two State-run primary schools attended predominantly by Roma children and with Roma-only classes respectively • State’s failure to take desegregation measures to correct applicants’ factual inequality and to avoid perpetuation of discrimination resulting from their over-representation in one of the district’s school • Segregation in both schools not objectively and reasonably justified by legitimate aim
Art 46 • Execution of judgment • Respondent State required to take individual measures to end the segregation of Roma pupils in the two State-run primary schools
 
STRASBOURG
13 December 2022
FINAL
 
13/03/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Elmazova and Others v. North Macedonia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Egidijus Kūris,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Diana Sârcu,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the applications (nos. 11811/20 and 13550/20) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 February and 6 March 2020 by eighty-seven Macedonians/citizens of the Republic of North Macedonia of Roma origin, children and their parents (“the applicants”);
the decision to give notice to the Government of North Macedonia (“the Government”) of the complaints under Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention and to declare the remainder of the applications inadmissible;
the President’s decision under Rule 47 § 4 of the Rules of Court not to have the names of the child applicants disclosed;
the parties’ observations;
Having deliberated in private on 22 November 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns alleged segregation of Roma pupils in two State-run primary schools in Bitola and Shtip, in that, as regards the former, they were placed in a school alleged to be Roma-only, and as regards the latter, they were placed in Roma-only classes. The applicants complained of a violation of their rights under Article 1 of Protocol No. 12 to the Convention and Article 14 of the Convention. THE FACTS
2. The applicants were born between 1958 and 2013 and live in Bitola and Shtip. Their names and details are set out in the appendix. The applicants were represented before the Court by the European Roma Rights Centre (ERRC) based in Brussels, Belgium and Ms S. Bojkovska, a lawyer practising in Skopje, North Macedonia. 3. The Government were represented by their Agent, Ms D. Djonova. 4. The facts of the case may be summarised as follows. APPLICATION NO. 11811/20
5. The application concerns alleged segregation of Roma pupils in a State-run primary school, G.S., in Bitola in the 2018/19 academic year. The applicants reside in Bair, a residential district in Bitola. G.S. and T.A., another State-run primary school located 600 metres from G.S., belong to the same catchment area defined by the Municipality of Bitola (decision dated 29 October 2009). In accordance with the applicable legislation (see paragraphs 22 and 23 below), each residential district had a designated State‑funded primary school which was obliged to admit the children who resided in its catchment area (a school of compulsory admission). Nevertheless, parents were free to request that their children be admitted to another public school of their choice, in the same or different catchment area, for which consent by the admitting school was required. Proceedings before the Constitutional Court
6. On 12 November 2018 a group of Roma individuals, who were parents and pupils in G.S., including nineteen of the applicants, represented by Mr S. Bojkovska (see paragraph 2 above), lodged a constitutional complaint with the Constitutional Court alleging discriminatory practice and segregation in the enjoyment of their right to education. They alleged that Roma children from Bair were enrolled in G.S., unlike pupils of Macedonian ethnic origin from the same or the neighbouring catchment area, who were enrolled in T.A. The latter allowed transfers from G.S. of pupils of Macedonian ethnic origin, but did not allow transfers of Roma pupils. In the 2018/2019 academic year, there were seven Roma pupils in T.A., and five pupils of Macedonian ethnic origin in G.S. The implementation in practice of the municipality’s decision regarding the schools’ catchment area (see paragraph 5 above) led to the segregation of Roma in G.S. Over 80% of all pupils in that school, known as the “Romani or Gypsy school”, were Roma. The claimants referred to the relevant information noted by the National Ombudsman in 2015 (see paragraph 37 below) and to a 2016 joint report by two non-governmental organisations (one of which was ERRC), which confirmed the Ombudsman’s findings. The claimants further alleged that Roma pupils in G.S. had received inferior education in comparison with pupils in T.A. (fewer courses, less-skilled teachers, inadequate resources). The alleged segregation prevented any interaction between children of different ethnic communities, social inclusion and integration of Roma into the multi-ethnic society in the respondent State. The claimants requested that the court establish the existence of a discriminatory practice and order the schools in question, the Ministry of Education and the Municipality of Bitola to refrain from such a practice in future. The alleged segregation has been taking place since the 2011/12 academic year. 7. On the basis of the material referred to by the applicants and the information obtained from the Ministry of the Interior and both schools in question (G.S. and T.A.), the Constitutional Court, on 18 September 2019, established the following facts: 83.5% of pupils in G.S. were Roma (of 584 pupils in G.S., 488 were Roma, 85 ethnic Macedonians and 11 others) and 95.1% of pupils in T.A. were ethnic Macedonians (of 589 pupils, 560 were ethnic Macedonians, 15 pupils were Roma (or 2.54%) and 13 others). In the 2018/19 academic year, of 145 pupils eligible to enrol in the first grade (42 ethnic Macedonians and 103 Roma) in the relevant catchment area, five ethnic Macedonian pupils and 63 Roma pupils were enrolled in G.S., while six Roma pupils were enrolled in the first grade in T.A. In the same academic year, ethnic Macedonian pupils were placed together in a single class at each grade (with the exception of the last two grades (the VIII and IX years)). Between 2016 and 2019, 58 requests for transfer to T.A. were submitted from other catchment areas, of which three requests were submitted by Roma (the remaining requests were submitted by ethnic Macedonians). The school confirmed that all requests for transfer to T.A. had been granted. 8. On the basis of the above statistics, the court concluded that “children in the Bair district attend two ethnically divided schools”. However, the court held that the statistical information regarding the ethnic composition of classes in both schools was not sufficient to establish segregation. It held that it was beyond its competence to assess the overall social context, and the applicants had not presented any facts or evidence (such as requests for transfer or refusal decisions) to support their alleged inability to enrol in T.A., and, accordingly, their status as victims of racial discrimination on the basis of their Roma origin. The constitutional complaint contained general allegations of segregation and discriminatory treatment, without there being any concrete evidence that any claimant had not been allowed to transfer to T.A. The parents had voluntarily enrolled their children in G.S. and none of them had requested a transfer to T.A. Alleged oral attempts in this regard had not been supported with any written material. In the absence of any evidence that the claimants had been subjected to different treatment in the enjoyment of the right to education in comparison with parents and pupils of Macedonian ethnic origin whose requests for transfer to T.A. had been accepted, the Constitutional Court rejected (отфрла) the constitutional complaint under Rule 52 of the Rules of Procedure of the Constitutional Court (see paragraph 28 below; decision У.бр.132/2018 of 18 September 2019, decided by a majority, and notified to the claimants’ lawyer on 12 December 2019). In a joint dissenting opinion, Judges S.M., O.K. and N.A. held that the claimants had submitted sufficient evidence to demonstrate the difference in treatment in G.S. and T.A. in the enjoyment of their right to education. Other information
9. In the 2020/2021 academic year, of 93 first-grade pupils enrolled in G.S., 80 pupils were Roma. In 2021/2022, all 77 first-grade pupils were Roma. 10. On 4 February 2022 the ERRC lodged with the Commission for Prevention and Protection against Discrimination (a State body set up under the Discrimination Act, “the Commission”) a complaint of the segregation of Roma pupils in G.S. in the 2021/2022 academic year. On 13 April 2022 the Commission issued an opinion in which it found indirect discrimination on account of ethnic segregation to be a systemic problem in the educational process stemming from the Primary Education Act. The Commission issued a recommendation that the relevant national and local authorities, and the administration of the schools concerned, ensure stricter and more consistent application of decisions on catchment area that would reduce Roma segregation. That recommendation is to be implemented within six months under threat of minor-offence proceedings being instituted in respect of the responsible persons. APPLICATION No. 13550/20
11. The child applicants attend the public primary school G.D. in Shtip. Proceedings before the Constitutional Court
12. In submissions dated 30 October 2018, and supplemented on 14 and 19 December 2018, a group of Roma individuals, including thirty-three applicants, represented by Ms S. Bojkovska, complained to the Constitutional Court that they had been victims of segregation and discrimination in the enjoyment of their right to education in respect of G.D. They claimed that in the 2017/2018 and 2018/2019 academic years, there were three first-grade classes, of which two were mixed and one was Roma-only (each composed of eighteen pupils). They complained that they were excluded from regular education and, hence, did not have the same opportunities as non-Roma pupils regarding their future education, employment and integration into society. In support, the claimants referred to the Ombudsman’s reports (see paragraphs 35 and 37 below) and restated the consequences of the alleged segregation (see paragraph 6 above). They requested that the Constitutional Court acknowledge the segregation, and ban the relevant national, local and school authorities from continuing to take further measures that would lead to discrimination, namely the segregation of Roma in terms of their right to education. 13. On 25 September 2019 the Constitutional Court delivered a decision, by a majority, which ran to over thirty pages, rejecting the claimants’ constitutional complaint under Rule 52 of the Rules of the Constitutional Court. It established that during the period under consideration there had been fewer pupils of Macedonian ethnic origin in G.D. as they had enrolled in other schools in other catchment areas. In the 2017/2018 academic year, fifty-one pupils of Macedonian ethnic origin who were within G.D.’s catchment area enrolled in four out-of-catchment-area schools. In addition, a large Roma community resided in the catchment area to which G.D. belonged. G.D. confirmed that that situation prevented it from ensuring the balanced placement of pupils in terms of their ethnicity, sex and social status. G.D. took certain practical steps (home visits, distribution of flyers, meetings with parents and the relevant authorities) to encourage the enrolment of non-Roma first-grade pupils in that school, as well as to redistribute Roma pupils in the existing classes within the school (the latter action was not supported by the parents of pupils from the mixed classes, mainly non-Roma), which were to no avail. In June 2016 it sought in vain that the municipality ensure strict implementation of its decisions regarding school catchment areas so that the transfer of out-of-catchment non-Roma pupils would be granted only in exceptional circumstances. In addition, it was suggested that Roma pupils be given easier access to other schools from different catchment areas and provided with free transportation. On the basis of information obtained from G.D., the Constitutional Court established that in 2017/2018, 64% of all first‑grade pupils in G.D. were Roma, and in 2018/2019, 67% were Roma. It further confirmed the above figures (see paragraph 14 above) regarding the ethnic origin of the first-grade pupils in G.D. and their placement in classes in the above-mentioned years (the only exception being that in 2017/2018 there was one non-Roma student in the alleged Roma-only class). In the two mixed first-grade classes in the 2017/2018 academic year, there were 31 and 32 pupils respectively, whereas in the 2018/2019 academic year, there were 25 and 27 pupils. The court further concluded that there was no evidence that Roma pupils in the “segregated” classes had been treated differently in comparison with pupils in the mixed classes, namely that they had obtained an inferior education. According to the court, “the allegations of segregation ... must be supported with relevant facts and evidence that would make the claim of different treatment ... at least plausible”, and found no such evidence in the present case. “Instead of concrete facts and evidence for the alleged violation, in each individual case, the focus of the complaint was put on a general situation and problem, namely segregation in schools”. For the court, “the ethnic composition of the classes in question, d[id] not mean, in itself, automatic discrimination ... the fact that in the ‘segregated’ classes there were no pupils of Macedonian ethnic origin ..., taken alone, [wa]s insufficient for the court to examine the merits of the complaint ... namely, to reach an objective conclusion [that there was] segregation”. 14. Lastly, the court noted that the constitutional complaint was premature given its subsidiary nature that required prior exhaustion of the available ordinary remedies, namely a civil claim for discrimination under the Discrimination Act before the courts of general jurisdiction (decision U.br. 131/2018, notified to the claimants’ lawyer on 18 December 2019). Other relevant information
15. In the 2020/2021 academic year, of 87 first-grade pupils enrolled in G.D., 57 were Roma, 26 were ethnic Macedonians and four were Turkish. In 2021/2022, of 78 first-grade pupils, 63 were Roma, 14 were ethnic Macedonians and one was Turkish. They were divided into four classes, of which two classes were Roma-only. 16. Following a complaint of September 2021 by the ERRC, on 3 February 2022 the Commission issued an opinion finding indirect discrimination on account of ethnic segregation to be a systemic problem in the educational process stemming from the Primary Education Act. Noting that there was a “conscious separation of non-Roma from Roma children”, the Commission held that “the context can have far-reaching consequences not only for children of Roma ethnicity, but also for non-Roma children, because the lack of opportunity for children of different cultural and ethnic backgrounds to integrate and learn about each other in the future can lead to intolerance and discrimination from the side of the ‘stronger’ or more numerous group”. The Commission also issued a general recommendation that the relevant national and local authorities and the administration of the schools concerned should ensure a stricter and more consistent application of the decisions on catchment areas that would reduce Roma segregation. As stated by the Government, the implementation of the recommendations was still ongoing. CIVIL ACTION ALLEGING GENERAL DISCRIMINATION AGAINST ROMA CHILDREN IN EDUCATION
17. On 28 January and 12 April 2021, the Helsinki Committee for Human Rights in Skopje lodged a civil action for damages against several State and local authorities, including the Municipalities of Bitola and Shtip, seeking that the Skopje Court of First Instance establish that there had been “segregation of Roma children in the process of education”. The claimant referred to numerous reports by domestic and foreign non-governmental organisations, as well as by international bodies, issued since 2009 which noted the situation of Roma in the respondent State. It also noted relevant facts, judicial decisions and reports concerning the alleged discrimination and segregation in G.S. and G.D. No information was submitted about whether there had been any decision on the claimant’s claim. DOMESTIC LAW AND PRACTICE
CONSTITUTION OF 1991
18. Article 108 of the Constitution provides that the Constitutional Court safeguards constitutionality and legality. Under Article 110, the Constitutional Court reviews the constitutionality and legality of laws and other regulations, and protects the human rights and freedoms enumerated in that Article (including the right not to be discriminated against). Article 112 provides that, inter alia, it can repeal (укине) or annul (поништи) a law or regulation if it is not in conformity with the Constitution or laws. PRIMARY EDUCATION ACT
19. Section 4 of the Act, as in force at the relevant time, specified that primary education was mandatory and lasted nine years. 20. Section 19 provided that a decision founding a primary school specified, inter alia, the school’s catchment area. 21. Section 41 provided that the number of pupils per class should be between twenty-four and thirty-four pupils. A class with fewer pupils could also be formed, with the consent of the founder of the school and the relevant Ministry. 22. Under section 46(3)-(5), a school was required to admit children from its catchment area. It could accept children from other catchment areas if there were available places. The founder of the school was to determine its catchment area. 23. Section 50(1) and (2) provided that the parent or guardian could enrol the child in the primary school in the area where he or she lived or had a permanent residence. The parent or the guardian could enrol the child in another primary school in the same or different area with the consent of the admitting school. DISCRIMINATION ACT OF 2010
24. The Act, as in force at the relevant time, defined and proscribed any form of direct or indirect discrimination (sections 3 and 6). It also entitled victims of discrimination to seek before the civil courts of general jurisdiction, under the rules of the Civil Proceedings Act, a judicial acknowledgement of the alleged discrimination, the ban of any further harmful action and the award of compensation (sections 34-41). 25. Section 12 of the Discrimination Act of 2020 defines, for the first time, segregation as a physical separation of a person or group of persons on a discriminatory basis without a legitimate or objectively justified aim. The Act also provides for court protection under similar rules to those specified in the 2010 Act (sections 32-40). RULES OF PROCEDURE OF THE CONSTITUTIONAL COURT
26. Rule 12 of the Rules of Procedure provides that anyone can lodge an application challenging the constitutionality or legality of a law or a regulation. 27. Under Rule 51, everyone who considers that his or her right or freedom has been violated by a final individual decision or an action can seek protection before the Constitutional Court. 28. Under Rule 52, a constitutional complaint for the protection of human rights and freedoms must state the reasons for the protection sought, the impugned acts or actions, the facts and evidence in support of the complaint, and any other relevant information. 29. Under Rule 56, if the Constitutional Court finds a violation of a human right or freedom, it can declare the individual decision in question null and void or it can ban the action which caused the violation. 30. The enforcement of final individual decisions adopted on the basis of a law or regulation that the court has declared null and void is not permitted, and if the enforcement has already started, it will be discontinued (Rule 80). Rule 81 provides that every person whose right is violated by a final individual decision based on a law or regulation declared null and void by the Constitutional Court is entitled to seek that, inter alia, the body which has jurisdiction declare the final individual decision in question null and void. DOMESTIC JUDICIAL PRACTICE
31. By a decision of 30 January 2013, the Constitutional Court decided not to initiate a procedure for review of the constitutionality of section 50(2) of the Primary Education Act in part regarding “the consent of the admitting school”. On 6 March 2013 the court declared unconstitutional part of a municipality decision on the catchment area of a school which introduced new admission criteria (one-year residence and proof of ownership), in addition to the criteria specified in section 50 of the Primary Education Act (decision U.br. 158/2012). 32. By a decision of 27 June 2018, the Constitutional Court accepted a constitutional complaint lodged by two physical persons and found that they were discriminated against in the enjoyment of their freedom of expression on the basis of their political affiliation (decision U.br.116/2017). 33. The Government submitted copies of three judgments of 2017 in which the civil courts allowed claims lodged under the Discrimination Act to claimants who had been prevented from leaving the territory of the respondent State and awarded them non-pecuniary damages on that ground (judgments P4.br.34/17; P4.br.40/17 and P4.br.55/17). INTERNATIONAL MATERIALS
EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE (ECRI)European Commission against Racism and Intolerance General Policy Recommendation No. 13 on combating antigypsyism and discrimination against Roma, adopted on 24 June 2011 and amended on 1 December 2020, Strasbourg 2020

34. The relevant parts of the ECRI General Policy Recommendation No.13 read as follows:
“Recommends that the governments of member states:
...
d. take urgent measures, including legal and political ones, to put an end to the segregation at school which Roma children are subjected to, and integrate them into schools attended by pupils from the majority population;
...”
OTHER MATERIALS
REPORTS OF THE NATIONAL OMBUDSMANOmbudsman’s annual report for 2011

35. The relevant parts of the National Ombudsman’s annual report for 2011 read as follows:
“... Unfortunately, in the State there is still segregation of Roma pupils who, at certain schools, are separated from other pupils in special classes, and the principle of regional enrolment in the educational process is not respected for these children. For example, in certain municipalities in which the Roma ethnic community is in the majority, such as Bitola and Shtip, Roma children enrol only in certain schools, regardless of whether the school belongs to the region in which their home is located ...”
Ombudsman’s annual report for 2012
36. The relevant parts of the Ombudsman’s annual report for 2012 read as follows:
“... The Ombudsman emphasises the need for active measures and promotional policies as regards the Roma community and Roma children, as they are the target of the most intense negative stereotypes and social distancing from other children. Unfortunately, the Republic of Macedonia still sees cases of segregation of Roma pupils, as some schools separate these children from other pupils and place them in special classes, and for these children the regionalisation of the enrolment process does not apply ... The flexibility in interpreting the legislation leads to a situation where a region of mixed ethnicity includes schools of only one ethnicity.
... Precisely this flexible interpretation of the regionalisation process has led to the fact that in the Municipality of Bitola, in a school which is normally attended by Roma and Macedonian children, in the 2012/2013 academic year only a dozen Macedonian children enrolled in the school because of the overwhelming presence of Roma children. The Ombudsman has indicated the consequences of this situation and requests that the municipality administration takes measures to prevent these occurrences, since they can have a negative effect and jeopardize the existence of the school in this type of environment ...”
Information on the situation of enrolment and placement of first‑grade Roma pupils in mixed classes in the 2014/2015 academic year, October 2015
37. As noted by the Ombudsman, in the 2014/2015 academic year 73 of 86 first-grade pupils in G.S. were Roma. There were three Roma-only classes, with 68 pupils, while the remaining five Roma pupils were placed in a mixed class. Both G.S. and G.D. were listed among the schools in which first-grade pupils were not enrolled in accordance with the relevant decisions on catchment area. The refusal of parents of Macedonian ethnic origin to enrol their children because both schools were attended by Roma pupils was mentioned as the main reason for non-compliance with the decision on catchment area. The Ombudsman recommended that the relevant authorities take measures to ensure the balanced placement of Roma pupils in mixed classes and implementation of the catchment decisions in a manner that would “reduce segregation of Roma pupils”. THE LAW
I. JOINDER OF THE APPLICATIONS
38. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION
39. The applicants complained of segregation in primary schools G.S. and G.D. in Bitola and Shtip without any objective and reasonable justification. They complained about the placement of child applicants in G.S., as a Roma‑only school, and in Roma-only classes, as regards G.D. The applicants relied on Article 1 of Protocol No. 12 to the Convention and Article 14 of the Convention. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], no. 37685/10, § 124, 20 March 2018, and Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013), considers that the complaint should be analysed under Article 14, to be taken in conjunction with Article 2 of Protocol No. 1 (see, mutatis mutandis, X and Y v. North Macedonia, no. 173/17, § 64, 5 November 2020, and Memedov v. North Macedonia [Committee], no. 31016/17, § 32, 24 June 2021). The relevant provisions read as follows:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 2 of Protocol No. 1
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
AdmissibilityThe parties’ submissions

(a)   The Government
40. In their observations of 17 January 2022, the Government submitted that the applicants could not claim to be victims of a violation of their rights within the meaning of Article 34 of the Convention since their complaints concerned a general situation in education and they had failed to present concrete evidence that they had been directly affected by the situation complained of. In any event, victim status could not be recognised either in respect of the child applicants F.G. (applicant no. 12) and A.K. (applicant no. 13) (application no. 11811/20) or A.M. (applicant no. 24) and R.M. (applicant no. 28) (application no. 13550/20) who had been placed in mixed classes, or in respect of the adult applicants. 41. They further argued that the remedy used by the applicants was not adequate and offered no prospect of success for their grievances since the applicants had presented no concrete evidence for the violation complained of (regarding application no. 11811/20, there was no evidence that the child applicants had not been allowed to enrol in other public schools). The applicants, who were represented by a lawyer, must have known that their complaint could not be examined on the merits. For those reasons, the Constitutional Court’s decisions did not interrupt the running of the six‑month time-limit, which could be regarded to have started to run on 30 January 2013, the date on which the Constitutional Court had found section 50(2) of the Primary Education Act compatible with the Constitution (see paragraph 31 above). 42. Furthermore, since the situation complained of by the applicants, including the relevant decisions on catchment area, did not result from an individual action taken by a public authority, but from the legislation, the applicants should have asked the Constitutional Court to review, instead, the constitutionality and/or legality of the relevant regulatory framework. The applicants had also failed to seek judicial protection under the Discrimination Act and had applied directly to the Constitutional Court notwithstanding that the latter remedy was of a subsidiary nature and presupposed prior exhaustion of ordinary remedies, as found by the Constitutional Court regarding application no. 13550/20 (see paragraph 14 above). Although both remedies were readily available and offered a reasonable prospect of success, the civil avenue of redress was more effective and expedient in that it provided the applicants with the possibility of obtaining compensation if successful, which was not the case with the constitutional complaint, which, if successful, would have to be followed by a separate compensation claim before the civil courts. Judicial practice supported the effectiveness of the civil avenue of redress (see paragraph 33 above). The objection of non-exhaustion applied a fortiori to the applicants who had not participated in the proceedings before the Constitutional Court. 43. In a document dated 7 April 2022 containing their additional observations and comments on the applicants’ claims for just satisfaction, the Government referred to the civil action lodged by the Helsinki Committee (see paragraph 17 above), which, according to them, rendered the applications premature. (b)   The applicants
44. The applicants contested the Government’s arguments. The Government’s objection regarding their victim status was untenable as they had made a prima facie case of discrimination before the Constitutional Court. The segregation complained of affected all the child applicants, including the four applicants referred to by the Government who had attended mixed classes. The adult applicants were to be regarded as victims of discrimination in relation to the admission of their children and the formation of classes in the schools in question. 45. They further submitted that the constitutional complaint was an effective remedy for the allegations complained of (see paragraph 32 above) and it should be taken into account for the calculation of the six-month time-limit. An application for the review of constitutionality or legality was not appropriate in the circumstances as it could not tackle the issue of the selective application of the relevant regulatory framework in practice, which was the gist of their grievances. The civil action under the Discrimination Act was an alternative avenue of redress that pursued the same objective as the constitutional complaint. For that reason, they were not required to make use of it. 46. The applicants who had not been a party to the proceedings before the Constitutional Court were to be exempted from the exhaustion requirement and could be regarded as victims of the alleged violation as their individual situation was not different from that of the applicants who had applied to that court. In this connection, the applicants argued that the constitutional complaint could be regarded as public interest litigation and therefore a means of exhausting domestic remedies.

Article of the Convention at issue: Article 14
Outcome: violation