ITEMID: 001-97689
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF ORŠUŠ AND OTHERS v. CROATIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed;Violation of Art. 6-1;Violation of Art. 14+P1-2;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Christos Rozakis;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Renate Jaeger;Sverre Erik Jebens
TEXT: 9. The applicants were born between 1988 and 1994 and live respectively in Orehovica, Podturen and Trnovec. Their names and details are set out in the appendix.
10. During their education, the applicants at times attended separate classes, comprising only Roma pupils, at a primary school in the village of Podturen for nine applicants (the second to tenth applicants) and at a primary school in the village of Macinec, in Međimurje County, for five applicants (the eleventh to fifteenth applicants). In Croatia, primary education consists of eight grades and children are obliged to attend school from the age of seven to fifteen. The first four grades are considered as lower grades and each class is assigned a class teacher who in principle teaches all subjects. The fifth to eighth grades are upper grades in which, in addition to a class teacher assigned to each class, different teachers teach different subjects. The curriculum taught in any primary school class, including the Roma-only classes which the applicants attended, may be reduced by up to 30% in comparison to the regular, full curriculum.
11. The proportion of Roma children in the lower grades (from the first to the fourth grade) varies from 33% to 36%. The total number of pupils in Podturen Primary School in 2001 was 463, 47 of whom were Roma. There was one Roma-only class, with 17 pupils, while the remaining 30 Roma pupils attended mixed classes.
12. In 2001 a pre-school programme called “Little School” (Mala škola) was introduced in the Lončarevo settlement in Podturen. It included about twenty Roma children and was designed as a preparatory programme for primary school. Three educators were involved, who had previously received special training. The programme ran from 11 June to 15 August 2001. This programme has been provided on a permanent basis since 1 December 2003. It usually includes about twenty Roma children aged from 3 to 7. The programme is carried out by an educator and a Roma assistant in cooperation with Podturen Primary School. An evaluation test is carried out at the end of the programme.
13. In December 2002 the Ministry of Education and Sports adopted a decision introducing Roma assistants in schools with Roma pupils from the first to fourth grades. In Podturen Primary School, there was already a Roma assistant who had worked there since September 2002. A statement made by one such assistant, Mr K.B., on 13 January 2009 reads:
“I started work at Podturen Primary School in September 2002. At that time there were two classes in the fourth grade. Class four (b) had Roma pupils only and it was very difficult to work with that class because the pupils were agitated and disrupted the teaching. I contemplated leaving after only two months. At the request of teachers, I would give written invitations to the parents or I would invite them orally to come to talk with the teachers at the school. Some parents would come, but often not, and I had to go and ask them again. A lot of time was needed to explain Croatian words to the pupils because some of them continued to speak Romani and the teachers could not understand them. I told the pupils that they should attend school regularly. Some pupils would just leave classes or miss a whole day. I helped pupils with homework after school. I helped the school authorities to compile the exact list of pupils in the first grade. I no longer work at the school.”
14. Since the school year 2003/04 there have been no Roma-only classes in Podturen Primary School.
15. The proportion of Roma children in the lower grades varies from 57% to 75%. Roma-only classes are formed in the lower grades and only exceptionally in the higher grades. All classes in the two final grades (seventh and eighth) are mixed. The total number of pupils in Macinec Primary School in 2001 was 445, 194 of whom were Roma. There were 6 Roma-only classes, with 142 pupils in all, while the remaining 52 Roma pupils attended mixed classes.
16. Since 2003 the participation of Roma assistants has been implemented.
17. A “Little School” pre-school programme was introduced in 2006.
18. The applicants submitted that they had been told that they had to leave school at the age of 15. Furthermore, the applicants submitted statistics showing that in the school year 2006/07 16% of Roma children aged 15 completed their primary education, compared with 91% of the general primary school population in Međimurje County. The drop-out rate of Roma pupils without completing primary school was 84%, which was 9.3 times higher than for the general population. In the school year 2005/06, 73 Roma children were enrolled in the first grade and 5 in the eighth.
19. The following information concerning each individual applicant is taken from official school records.
20. By a letter of 22 February 2007, the first applicant expressed the wish to withdraw his application. Thus in the Chamber judgment of 17 July 2008 the Court decided to discontinue the examination of the application in so far as it concerned the first applicant.
21. The second applicant, Mirjana Oršuš, was enrolled in the first grade of primary school in the school year 1997/98. She attended a mixed class that year and the following year, but in those two years she failed to go up a grade. In the school years 1999/2000 to 2002/03 she attended a Roma-only class. In 2003/04 to 2005/06 she attended a mixed class. In 2005/06 she took the sixth grade for the second time and failed. She failed the first and the sixth grades twice. Out of seventeen regular parent-teacher meetings organised during her primary schooling, her parents attended three.
22. She was provided with additional classes in Croatian in the fourth grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group (that is to say a number of different activities organised for the same group of children), organised by the school. After reaching the age of 15, she left school in August 2006. Her school report shows that during her schooling she missed 100 classes without justification.
23. The third applicant, Gordan Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and passed the first grade. That year and the following year he attended a Roma-only class. In 1998/99 and 1999/2000 he attended a mixed class and after that a Roma-only class for the remainder of his schooling. In 2002/03 he passed the fourth grade. He failed the second grade three times. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two.
24. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15 he left school in September 2003. His school report shows that during his schooling he missed 154 classes without justification.
25. Later, he enrolled in evening classes in the People’s Open College in Čakovec, where he completed his primary education.
26. The fourth applicant, Dejan Balog, was enrolled in the first grade of primary school in the school year 1996/97. During the first and second years he attended a Roma-only class and the following two years a mixed class. In 2000/01 to 2002/03 he attended a Roma-only class. In 2003/04 to 2005/06 he attended a mixed class. In 2005/06 he took the fifth grade for the second time and failed. He failed the second grade three times, the fourth grade once and the fifth grade twice. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended two.
27. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 881 classes without justification.
28. Later, he enrolled in fifth-grade evening classes, but did not attend.
29. The fifth applicant, Siniša Balog, was enrolled in the first grade of primary school in 1999/2000 and passed the first grade. In 1999/2000 to 2002/03 he attended a Roma-only class, after which he attended a mixed class. In 2006/07 he took the fifth grade for the third time and failed. He failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one.
30. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in 2008. His school report shows that during his schooling he missed 1,304 classes without justification. In October 2006 the school authorities wrote to the competent social welfare centre informing them of the applicant’s poor school attendance.
31. The sixth applicant, Manuela Kalanjoš, was enrolled in the first grade of primary school in the school year 1996/97 and attended a Roma-only class. The following two years she attended a mixed class. In 1999/2000 to 2002/03 she attended a Roma-only class and passed the fourth grade, after which she attended a mixed class. From February 2003 she followed an adapted curriculum for the rest of her schooling on the ground that a competent expert committee – the Children’s Psycho-physical Aptitude Assessment Board (Povjerenstvo za utvrđivanje psihofizičkog stanja djeteta) had established that she suffered from developmental difficulties. In 2004/05 she took the fifth grade for the second time and failed. She failed the first grade three times and the fifth grade twice. Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three.
32. She was provided with additional classes in Croatian in her third grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2005. Her school report shows that during her schooling she missed 297 classes without justification.
33. Later, she enrolled in fifth-grade evening classes, but did not attend.
34. The seventh applicant, Josip Oršuš, was enrolled in the first grade of primary school in 1999/2000 and attended a Roma-only class up to and including the school year 2002/03, after which he attended a mixed class. From May 2002 he followed an adapted curriculum in his further schooling on the ground that a competent expert committee – the Children’s Psycho-physical Aptitude Assessment Board (Komisija za utvrđivanje psihofizičke sposobnosti djece) had established that he suffered from developmental difficulties. In 2007/08 he took the sixth grade for the second time and failed. He failed the fifth and sixth grades twice. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two.
35. He was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in February 2008. His school report shows that during his schooling he missed 574 classes without justification.
36. The eighth applicant, Biljana Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and in her first three school years attended a Roma-only class, after which she attended a mixed class for two years. On 28 December 2000 the Međimurje County State Administration Office for Schooling, Culture, Information, Sport and Technical Culture (Ured za prosvjetu, kulturu, informiranje, šport i tehničku kulturu Međimurske Županije) ordered that she follow an adapted curriculum during the rest of her schooling on the ground that a competent expert committee – the Children’s Psycho-physical Aptitude Assessment Board – had established that she suffered from poor intellectual capacity, concentration difficulties and socio-pedagogical neglect. It was also established that she was in need of treatment from the competent social welfare centre. In 2001/02 and 2002/03 she attended a Roma-only class and passed the fourth grade. In the following two school years she attended a mixed class, took the fifth grade for the second time and failed. She failed the third grade three times and the fifth grade twice. Out of seven regular parent-teacher meetings organised during her primary schooling, her parents attended three.
37. She was provided with additional classes in Croatian in the third grade in 2001/02. She participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2005. Her school report shows that during her schooling she missed 1,533 classes without justification.
38. The ninth applicant, Smiljana Oršuš, was enrolled in the first grade of primary school in the school year 1999/2000 and attended a Roma-only class up to and including 2002/03, after which she attended a mixed class. In 2006/07 she took the fifth grade for the third time and failed. She failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three.
39. She was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2007. Her school report shows that during her schooling she missed 107 classes without justification.
40. The tenth applicant, Branko Oršuš, was enrolled in the first grade of primary school in the school year 1997/1998 and attended a mixed class for the first two years. From 1999/00 to 2002/03 he attended a Roma-only class, after which he attended a mixed class. On 23 February 2005 the Međimurje County State Welfare Department ordered that he follow an adapted curriculum during the rest of his schooling on the ground that a competent expert committee – the Children’s Psycho-physical Assessment Board – had established that he suffered from developmental difficulties. In 2005/06 he failed the sixth grade. He failed the first grade twice and the fourth and sixth grades once. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one.
41. He was provided with additional classes in Croatian in the third grade in the school year 2001/02. He participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 664 classes without justification.
42. The eleventh applicant, Jasmin Bogdan, was enrolled in the first grade of primary school in 1997/98. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points (15.5%). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2004/05 he took the fifth grade for the second time and failed. He failed the first and the fourth grades once and the fifth grade twice. Out of twenty-four parent-teacher meetings organised during his entire primary schooling, his parents attended none.
43. He was provided with additional classes in Croatian in the third grade in the school year 2001/02. After reaching the age of 15, he left school in August 2005. His school report shows that during his schooling he missed 1,057 classes without justification.
44. The twelfth applicant, Josip Bogdan, was enrolled in the first grade of primary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 8 out of 97 points (8.25%). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2006/07 he took the third grade for the second time and failed. He failed the first grade once, the second grade three times and the third grade twice. Out of thirty-seven regular parent-teacher meetings organised during his primary schooling, his parents attended none.
45. He was provided with additional classes in Croatian in the first, second and third grades. In the second grade he participated in a dancing group and in the third grade in a choir. After reaching the age of 15, he left school in August 2007. His school report shows that during his schooling he missed 1,621 classes without justification.
46. The thirteenth applicant, Dijana Oršuš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that she had inadequate knowledge of the Croatian language. She scored 26 out of 97 points (26.8%). She was therefore assigned to a Roma-only class, where she spent her entire schooling. In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of thirty-two regular parent-teacher meetings organised during her primary schooling, her parents attended six.
47. She was provided with additional classes in Croatian in the first grade. In the first grade she participated in extracurricular activities in a mixed group and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 522 classes without justification.
48. The fourteenth applicant, Dejan Oršuš, was enrolled in the first grade of primary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points (15.5%). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2005/06 he passed the third grade. He failed the first grade three times and the third grade once. Out of twenty-eight regular parent-teacher meetings organised during his primary schooling, his parents attended five.
49. He was provided with additional classes in Croatian in the first grade. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 1,033 classes without justification.
50. The fifteenth applicant, Danijela Kalanjoš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that her understanding of the Croatian language was poor. She scored 37 out of 97 points (38.14%). She was therefore assigned to a Roma-only class, where she spent her entire schooling. In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of twenty-one regular parent-teacher meetings organised during her entire primary schooling, her parents attended two.
51. She was provided with additional classes in Croatian in the first grade. In the first grade she participated in extracurricular activities in a mixed group, in the second grade in dancing, in the third grade in handicraft classes, and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 238 classes without justification.
52. On 19 April 2002 the applicants brought an action under section 67 of the Administrative Disputes Act in the Čakovec Municipal Court (Općinski sud u Čakovcu) against the above-mentioned primary schools and Kuršanec Primary School, the State and Međimurje County (“the defendants”). They submitted that the teaching organised in the Roma-only classes in the schools in question was significantly reduced in volume and in scope compared to the officially prescribed curriculum. The applicants claimed that the situation described was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment. They requested the court to order the defendants to refrain from such conduct in the future.
53. The applicants also produced the results of a psychological study of Roma children attending Roma-only classes in Međimurje, carried out immediately before their action was lodged, showing the following:
– most children had never had a non-Roma child as a friend;
– 86.9% expressed a wish to have a non-Roma child as a friend;
– 84.5% expressed a wish to attend a mixed class;
– 89% said they felt unaccepted in the school environment;
– 92% stated that Roma and non-Roma children did not play together.
Furthermore, the report asserted that segregated education produced emotional and psychological harm in Roma children, in terms of lower self-esteem and self-respect and problems in the development of their identity. Separate classes were seen as an obstacle to creating a social network of Roma and non-Roma children.
54. The defendants each submitted replies to the arguments put forward by the applicants, claiming that there was no discrimination of Roma children and that pupils enrolled in school were all treated equally. They submitted that all pupils were enrolled in school after a committee (composed of a physician, a psychologist, a school counsellor (pedagog), a defectologist and a teacher) had found that the candidates were physically and mentally ready to attend school. The classes within a school were formed depending on the needs of the class, the number of pupils, etc. In particular, it was important that classes were formed in such a way that they enabled all pupils to study in a stimulating environment.
55. Furthermore, the defendants submitted that pupils of Roma origin were grouped together not because of their ethnic origin, but rather because they were often not proficient in Croatian and it took more exercises and repetitions for them to master the subjects taught. Finally, they claimed that Roma pupils received the same quality of education as other pupils as the scope of their curriculum did not differ from that prescribed by law.
56. On 26 September 2002 the Čakovec Municipal Court dismissed the applicants’ action, accepting the defendants’ argument that the reason why most Roma pupils were placed in separate classes was that they were not fluent in Croatian. Consequently, the court held that this was not unlawful and that the applicants had failed to substantiate their allegations concerning racial discrimination. Lastly, the court concluded that the applicants had failed to prove the alleged difference in the curriculum of the Roma-only classes.
57. On 17 October 2002 the applicants appealed against the first-instance judgment, claiming that it was arbitrary and contradictory.
58. On 14 November 2002 the Čakovec County Court (Županijski sud u Čakovcu) dismissed the applicants’ appeal, upholding the reasoning of the first-instance judgment.
59. Subsequently, on 19 December 2002, the applicants lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) under section 62 of the Constitutional Act on the Constitutional Court. In their constitutional complaint the applicants reiterated their earlier arguments, relying on the relevant provisions of the Constitution and of the Convention.
60. On 3 November 2003 the applicants’ lawyer lodged an application with the Constitutional Court to expedite the proceedings. On 7 February 2007 the Constitutional Court dismissed the applicants’ complaint in its decision no. U-III-3138/2002, published in Official Gazette no. 22 of 26 February 2007. The relevant parts of the decision read as follows.
“The first-instance court established in the impugned judgment that the criteria for formation of classes in the defendant primary schools had been knowledge of the Croatian language and not the pupils’ ethnic origin. The [first-instance] court considered that the complainants had failed to prove their assertion that they had been placed in their classes on the basis of their racial and ethnic origin. The [first-instance] court stressed that the complainants relied exclusively on the activity report of the Ombudsman for the year 2000. However, the Ombudsman said in his evidence that the part of the report referring to the education of Roma had been injudicious because all the relevant facts had not been established.
The first-instance court relied on section 27 paragraph 1 of the Primary Education Act ... which provides that teaching in primary schools is in the Croatian language and Latin script, and considered a lack of knowledge of the Croatian language as an objective impediment in complying with the requirements of the school curriculum, which also transpires from the conclusion of a study carried out for the needs of the Croatian Helsinki Committee. The [first-instance] court found:
‘pupils enrolling in the first year of primary schools have to know the Croatian language, so that they are able to follow the teaching, if the purpose of primary education is to be fulfilled. It is therefore logical that classes with children who do not know the Croatian language require additional efforts and commitment of teachers, in particular to teach them the Croatian language.’
The first-instance court found that the defendants had not acted against the law in that they had not changed the composition of classes once established, as only in exceptional situations was the transfer of pupils from one class to another allowed. The [first-instance] court considered that this practice respected the integrity of a class and its unity in the upper grades.
The [first-instance] court considered that classes should be formed so as to create favourable conditions for an equal approach to all pupils according to the prescribed curriculum and programme, which could be achieved only where a class consisted of a permanent group of pupils of approximately the same age and knowledge.
Furthermore, the [first-instance] court found that the complainants had failed to prove their assertion that ... they had a curriculum of significantly smaller volume than the one prescribed for primary schools by the Ministry of Education and Sports on 16 June 1999. The [first-instance] court found that the above assertion of the complainants relied on the Ombudsman’s report. However, the Ombudsman said in his testimony that he did not know how the fact that in Roma-only classes the teaching followed a so-called special programme had been established.
The [first-instance] court established that teaching in the complainants’ respective classes and the parallel ones followed the same curriculum. Only in the Kuršanec Primary School were there some deviations from the school curriculum, but the [first-instance] court found those deviations permissible since they had occurred ... at the beginning of the school year owing to low attendance.
After having established that the complainants had not been placed in their classes according to their racial and ethnic origin and that the curriculum had been the same in all parallel classes, the first-instance court dismissed the complainants’ action.
...
The reasoning of the first-instance judgment ... shows that the defendant primary schools replied to the complainants’ allegations as follows:
‘The [defendant schools] enrolled in the first year those children found psycho-physically fit to attend primary school by a committee composed of a physician, a psychologist, a school counsellor [pedagog], a defectologist and a teacher. They did not enrol Croatian children or Roma children as such, but children found by the said committee to be psychologically and physically fit to be enrolled in primary school. ... The defendant primary schools maintain that the first obstacle for Roma children in psychological tests is their lack of knowledge of the Croatian language in terms of both expression and comprehension. As to the emotional aspect of maturity, most of these children have difficulty channelling their emotions. In terms of social maturity, children of Roma origin do not have the basic hygienic skills of washing, dressing, tying or buttoning, and a lot of time is needed before they achieve these skills. ... It is therefore difficult to plan lessons with sufficient motivation for all children, which is one of the obligations of primary schools. There are classes composed of pupils not requiring additional schooling to follow the teaching programme and classes composed of pupils who require supplementary work and assistance from teachers in order to acquire the necessary [skills] they lack owing to social deprivation. ...’
The reasoning of the same judgment cites the testimony of M.P.-P., a school counsellor and psychologist at Macinec Primary School, given on 12 December 2001 ...;
‘Before enrolment the committee questions the children in order to establish whether they possess the skills necessary for attending school. Classes are usually formed according to the Gauss curve, so that the majority in a given class are average pupils and a minority below or above average. ... However, in a situation where 70% of the population does not speak Croatian, a different approach is adopted so as to form classes with only pupils who do not speak Croatian, because in those classes a teacher’s first task is to teach the children the language.’
The above shows that the allocation of pupils to classes is based on the skills and needs of each individual child. The approach is individualised and carried out in keeping with professional and pedagogical standards. Thus, the Constitutional Court finds the approach applied correct since only qualified experts, in particular in the fields of pedagogy, school psychology and defectology, are responsible for assigning individual children to the appropriate classes.
The Constitutional Court has no reason to question the findings and expert opinions of the competent committees, composed of physicians, psychologists, school counsellors [pedagog], defectologists and teachers, which in the instant case found that the complainants should be placed in separate classes.
None of the facts submitted to the Constitutional Court leads to the conclusion that the placement of the complainants in separate classes was motivated by or based on their racial or ethnic origin.
The Constitutional Court finds that their placement pursued the legitimate aim of necessary adjustment of the primary educational system to the skills and needs of the complainants, where the decisive factor was their lack of knowledge or inadequate knowledge of Croatian, the language used to teach in schools.
The separate classes were not established for the purpose of racial segregation in enrolment in the first year of primary school but as a means of providing children with supplementary tuition in the Croatian language and eliminating the consequences of prior social deprivation.
It is of particular importance to stress that the statistical data on the number of Roma children in separate classes in the school year 2001/02 ... are not in themselves sufficient to indicate that the defendants’ practice was discriminatory (see also the European Court of Human Rights judgments Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001, and D.H. and Others v. the Czech Republic, no. 57325/00, § 46, 7 February 2006).
Moreover, the complainants themselves maintain in their constitutional complaint that in the school year 2001/02 40.93% of Roma children in Međimurje County were placed in regular classes, which tends to support the Constitutional Court’s conclusion that there is no reason to challenge the correct practice of the defendant primary schools and expert committees.
...
In their constitutional complaint the complainants further point out that, ‘[e]ven if lack of knowledge of the Croatian language on enrolment in the first year was a problem, the same could not be said of the complainants’ enrolment in upper grades’. They therefore consider that their rights were violated by the courts’ findings that it had been justified to maintain separate [Roma-only] classes in the upper grades in order to preserve the stability of the wholeness of a given class. The complainants submit that the stability of a class should not have been placed above their constitutional rights, multiculturalism and national equality.
In that regard the Constitutional Court accepts the complainants’ arguments.
While the Constitutional Court considers correct and acceptable the courts’ findings that lack of knowledge of the Croatian language represents an objective obstacle justifying the formation of separate classes for children who do not speak Croatian at all or speak it badly when they start school ... bearing in mind the particular circumstance of the present case, it cannot accept the following conclusion of the first-instance court:
‘Furthermore, the integrity and unity of a class is respected in the upper grades. Therefore, transfer of children from one class to another occurs only exceptionally and in justified cases ... because a class is a homogeneous whole and transferring children from one class to another would produce stress. ... The continuity of a group is a precondition for the development of a class collective ...’
Accordingly, the Constitutional Court cannot accept the following view of the appellate court:
‘The classes are formed when the children enter the first year of their schooling, not every year, and their composition changes only exceptionally. They become a settled whole which makes for work of a higher quality and it is not pedagogically justified to change them. Therefore this court, like the first-instance court, concludes that maintaining established classes did not amount to an unlawful act.’
The above views of the courts would have been acceptable had they referred to the usual situations concerning the assignment of pupils to upper grade classes in primary schools where no objective need for special measures existed, such as forming separate classes for children with inadequate command of Croatian.
Considering the circumstances of the present case, the Constitutional Court finds that it is in principle objectively and reasonably justified to maintain separate classes in the upper grades of primary school only for pupils who have not attained the level of Croatian necessary for them to follow the school curriculum of regular classes properly. ...
However, there is no objective or reasonable justification for not transferring to a regular class a pupil who has attained proficiency in Croatian in the lower grades of primary school and successfully mastered the prescribed school curriculum.
...
Keeping such a pupil in a separate class against his or her will ... for reasons unrelated to his or her needs and skills would be unacceptable from the constitutional point of view with regard to the right of equality before the law, guaranteed under Article 14 § 2 of the Constitution.
...
... [A] constitutional complaint is a particular constitutional instrument for the protection of a legal subject whose human right or fundamental freedom guaranteed under the Constitution has been infringed in an individual act of a State or public body which determined his or her rights and obligations.
The present constitutional complaint concerns impugned judgments referring to the school year 2001/02. However, not a single complainant alleges that in that school year he or she was a pupil in a separate [Roma-only] upper-grade class or was personally affected or concerned by the contested practice ...
Although it does not concern the individual legal position of any of the complainants ..., in respect of the complainants’ general complaint about the maintaining of Roma-only classes in the upper grades of primary school the Constitutional Court has addressed the following question:
– was the continued existence of Roma-only classes in the upper grades of primary school ... caused by the defendants’ intent to discriminate those pupils on the basis of their racial or ethnic origin?
... [N]one of the facts submitted to the Constitutional Court lead to the conclusion that the defendants’ ... practice was aimed at discrimination of the Roma pupils on the basis of their racial or ethnic origin.
...
The complainants further complain of a violation of their right to education on the ground that the teaching organised in those classes was more reduced in volume and in scope than the curriculum for primary schools adopted by the Ministry of Education and Sports on 16 June 1999. They consider that ‘their placement in Roma-only classes with an inferior curriculum stigmatises them as being different, stupid, intellectually inferior and children who need to be separated from normal children in order not to be a bad influence on them. Owing to their significantly reduced and simplified school curriculum, their prospects of higher education or enrolment in high schools as well as their employment options or chances of advancement are slimmer ...’
After considering the entire case file, the Constitutional Court has found that the above allegations are unfounded. The case file, which includes the first-instance judgment ..., shows that the allegations of an inferior curriculum in Roma-only classes are not accurate. The Constitutional Court has no reason to question the facts as established by the competent court.
The possible difference in curricula between parallel classes for objective reasons (for example the low attendance at Kuršanec Primary School, where in the first term of the school year 2001/02 the pupils in classes 1c, 1d, 2b and 2c missed 4,702 lessons in total, 4,170 of which were missed for no justified reason) does not contravene the requirement that the curriculum be the same in all parallel classes.
The Constitutional Court is obliged to point out that neither the Constitution nor the Convention guarantees any specific requirements concerning school curricula or their implementation. First and foremost the Constitution and the Convention guarantee a right of access to educational institutions existing in a given State, as well as an effective right to education, in other words that every person has an equal right to obtain official recognition of the studies which he or she has completed (a similar view was expressed by the European Court of Human Rights in a case relating to certain aspects of the laws on the use of languages in education in [Case “relating to certain aspects of the laws on the use of languages in education in] Belgium[”] (merits), 23 July 1968, Series A no. 6). ...
... [T]he Constitutional Court finds the evidence submitted in the present proceedings insufficient to show beyond doubt that the complainants had to follow a school curriculum of lesser scope. ...
Thus, the Constitutional Court considers the complainants’ assertion about being stigmatised as a subjective value judgment, without reasonable justification. The Constitutional Court finds no factual support for the complainants’ assertion that the source of their stigmatisation was an allegedly reduced curriculum owing to which their prospects for further education were lower, and dismisses that assertion as arbitrary. The competent bodies of the Republic of Croatia recognise the level of education a person has completed irrespective of his or her racial or ethnic origin. In that respect everyone is equal before the law, with equal chances of advancement according to their abilities.”
61. Article 14 of the Constitution reads:
“Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.”
62. The relevant parts of section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 read:
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...
2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies are exhausted only after the decision on these legal remedies has been given.”
63. Section 67 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials, specifically that an action can be brought if the following conditions are met: (a) an unlawful action has already taken place; (b) such action is the work of a government official/body/agency or another legal entity; (c) the action resulted in a violation of one or more of the plaintiff’s constitutional rights; and (d) the Croatian legal system does not provide for any other avenue of redress.
64. The relevant provisions of the Primary Education Act (Zakon o osnovnom školstvu, Official Gazette nos. 59/1990, 26/1993, 27/1993, 29/1994, 7/1996, 59/2001, 114/2001 and 76/2005) read:
“The purpose of primary education is to enable a pupil to acquire knowledge, skills, views and habits necessary for life and work or further education.
A school is obliged to ensure continuous development of each pupil as a spiritual, physical, moral, intellectual and social being in accordance with her or his abilities and preferences.
The aims of primary education are:
– to arouse and cultivate in pupils an interest and independence in learning and problem solving as well as creativity, moral consciousness, aesthetic tastes and criteria, self-esteem and responsibility towards the self and nature, social, economic and political awareness, tolerance and ability to cooperate, respect for human rights, achievements and aspirations;
– to teach literacy, communication, calculation, scientific and technological principles, critical observation, rational argumentation, understanding of the life we live and understanding of the interdependence of people and nature, individuals and nations.
The aims and tasks of primary education shall be realised according to the established teaching plans and programmes.”
“Primary education lasts at least eight years.
Primary education is in principle mandatory for all children from six to fifteen years of age.”
65. The relevant part of the report concerning the situation of Roma reads:
“32. Overall, Roma/Gypsy are reported to continue to face societal discrimination and official inaction when complaints are filed. Progress has been made in the fields of education and public awareness, through the publication of studies on the subject of Romani education, initiatives related to the organisation and financing of education of Roma children, training of Roma teachers, and public forums on the difficulties faced by Roma/Gypsy society. The authorities are encouraged to give further support to such initiatives, taking into account ECRI’s General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies. ...”
66. The relevant parts of this report read:
“Access to education
41. Education of Roma/Gypsy children is a serious problem in Croatia. Many Roma/Gypsy children do not go to school, having either dropped out or having never attended. According to Roma/Gypsy representatives, there are regions where not a single Roma/Gypsy child attends school. ECRI understands that the reasons for this situation are complex, and there is no easy solution, however emphasises the need to increase the participation of Roma/Gypsy children at all levels of education. The Croatian authorities are encouraged to make special efforts in this regard.
42. ECRI wishes to draw attention to its General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies, where the existence of discrimination in explaining the process of social exclusion is highlighted. An investigation should be carried out into the role of stereotypes and prejudices of teachers, which may lead to low expectations for Roma/Gypsy children. ECRI recommends, in this respect, that training be offered to teachers, including information about the particular needs and expectations of Roma/Gypsies and the ability to use this knowledge effectively. As insufficient knowledge of the Croatian language upon entry to classes may also present an obstacle, ECRI emphasises the importance of preparatory classes, additional training in the Croatian language and increased opportunities to study the Roma language in the early years of schooling, which might assist Roma/Gypsy children in integrating into the educational system. ECRI notes with interest initiatives such as the “Programme for Including Roma children in the Education System of the Republic of Croatia”, launched in 1998, and encourages the authorities in their efforts to continue to develop and implement appropriate measures in cooperation with Roma associations. Roma/Gypsy organisations have highlighted the connection between poverty, poor living conditions and school attendance. The Croatian authorities might consider creating special assistance programmes for Roma/Gypsy and other children from extremely poor families who may find the costs of textbooks, other school materials and proper school dress prohibitive.”
67. The relevant parts of this report read:
“Education and awareness raising
83. ECRI is concerned to learn that schoolbooks sometimes convey negative images of certain minority groups, particularly ... Roma.
...
Situation of the Roma community in Croatia
...
137. ECRI is pleased to learn that in October 2003 the government adopted a national programme for the Roma which aims to resolve many of the difficulties encountered by Roma in their day-to-day lives. The programme is based on the observation that Roma are largely marginalised in social and public activities and experience worse living conditions than the average majority population and other minorities. The programme aims to abolish all forms of discrimination, violence, stereotyping and prejudice against Roma, while ensuring that they do not lose their own identity, culture or traditions. In order to achieve this aim, the programme sets out a series of measures in areas such as access to citizenship, education, housing, access to public services and relations with the police. In 2004, a commission made up of government representatives, Roma and NGO [non-governmental organisation] representatives was set up to monitor the programme and develop a joint action plan for the different ministries. A number of measures have already been taken, such as the training of Roma as assistants in schools or as police officers and the training of young Roma at seminars on participation in public life. ... However, implementation of the programme has not really got off the ground yet and NGOs are critical of the lack of budgetary resources provided, though these are essential to the success of such a programme. The programme must be regarded as positive, although in ECRI’s view it does not sufficiently emphasise the part played by stereotyping and prejudice against Roma, both among the population and among representatives of the public authorities, in the difficulties encountered by this community. ECRI also notes with interest that the government is in the process of adopting a national action plan for Roma integration, which proposes a wide range of measures to improve the situation of Roma.
...
Access to education for Roma children
141. In its second report on Croatia, ECRI recommended that the Croatian authorities make special efforts to increase the participation of Roma children at all levels of education.
142. The authorities have taken measures to facilitate Roma children’s access to education, such as setting up nursery school classes enabling them to learn Croatian, training teachers in Roma culture and training young Roma as assistants in schools. Some Roma now receive State grants to enrol in university. However, as they are very recent and applied on a small scale these measures are not enough to offset the fact that Roma children are very much behind in terms of equal opportunities in education. Many Roma children leave school at a very early age. They do not always have access to education in their mother tongue and their own culture in schools, in spite of the legislation on the rights of national minorities which provides for this possibility. The authorities have explained to ECRI that this is because the Roma have not asked for it themselves and because the Romani language is not standardised, with several Romani dialects in Croatia. However, some Roma representatives have expressed the wish that the school curriculum for Roma children should include teaching of their mother tongue and Roma culture, though they also emphasise the importance of learning Croatian.
143. ECRI is particularly concerned by allegations that separate classes solely for Roma children exist alongside classes for non-Roma children in some schools in the Međimurje region. According to several NGOs, including the European Roma Rights Centre, education in the classes set aside for Roma children is of poorer quality than in the other classes. According to the authorities, however, the sole reason why there are still classes comprising only Roma children is the de facto segregation which they face where housing is concerned, since Roma are sometimes in the majority in some areas. Nevertheless, this explanation does not provide a response to allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools, they came up against opposition from the non-Roma parents, who apparently signed petitions against this measure, with the result that the separate classes were maintained. ECRI notes that proceedings for racial segregation are pending before the national courts in this connection.
Recommendations
144. ECRI urges the Croatian authorities to take measures without delay to improve equal opportunities for Roma children in education. It stresses the paramount importance of elaborating a short-, medium- and long-term policy in the matter and providing sufficient funds and other resources to implement this policy. In particular, it should be made easier for Roma children to learn Croatian while also allowing those who so wish to be taught their Romani dialect and Roma culture.
145. ECRI encourages the Croatian authorities to conduct an in-depth investigation into the allegations that segregation is practised between Roma and non-Roma children in some schools and to rapidly take all the necessary measures, where appropriate, to put an end to such situations.
146. ECRI reiterates its recommendations that a study be carried out on the influence of stereotyping and prejudices among teachers, which may lead to low expectations of Roma children. It encourages all measures designed to educate teachers about Roma culture.”
68. The relevant parts of the opinion read:
“...
28. The Advisory Committee finds that Croatia has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment, housing and education. It appears, however, that Roma issues have recently received increasing attention from the central authorities. The Advisory Committee finds it important that this commitment increases the vigour with which sectoral projects for Roma, such as the ones in the field of education (see also comments under Article 12), are pursued and leads to the development, in consultations with Roma, of more comprehensive programmes and strategies to address the concerns of this national minority.
...”
“...
49. While recognising that there appears to be no large-scale separation of Roma children within the educational system of Croatia, the Advisory Committee is highly concerned about reports that in certain schools, Roma children are placed in separate classes and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Advisory Committee stresses that placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests. The Advisory Committee supports the efforts of the office of the Ombudsman to review this situation with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes. The Advisory Committee is aware of the reservations expressed by some Roma with respect to the integration of Roma pupils into regular classes and supports efforts to involve Roma parents and Roma organisations in the process aimed at remedying the current situation. The Advisory Committee considers that a key to reaching this aim is to secure that the educational system reflects and takes fully into account the language and culture of the minority concerned, as stipulated in the principles contained in the Committee of Ministers;’ Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe. The Advisory Committee notes that the government of Croatia adopted in July 1998 a “Programme of Integration of Roma Children in the Educational and School System” which contains a number of useful ideas in this respect. The text of the programme appears however rather cursory in nature, and the Advisory Committee considers that Croatia needs to develop, implement and evaluate further its measures aimed at improving the status of Roma in the educational system.
...”
V. Proposal for conclusions and recommendations by the Committee of Ministers
“...
...
The Committee of Ministers concludes that in certain schools in Croatia, Roma children are reportedly placed in separate classes, and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Committee of Ministers recommends that this question be reviewed, and necessary measures taken, with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes, bearing in mind the principles contained in the Committee of Ministers’ Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe.”
69. The relevant parts of the comments read:
“...
The education of Roma is a serious problem caused by their way of life and their attitude towards the system, laws, rights and obligations of citizens and requires particular efforts and solutions. The Croatian Ministry of Education and Sports, in cooperation with the other ministries and state institutions, local administration and self-government, as well as non-governmental organisations, has initiated programmes to resolve this issue at two levels:
(a) Programme of integration of the Roma population into the educational system of the Republic of Croatia.
(b) Exercise of minority rights aimed at preserving their mother tongue and culture.
Regarding pre-school education, the Ministry of Education and Sports, in cooperation with non-governmental organisations, initiated a programme for the inclusion of Roma children and their families, notably mothers, into the system, but only on a voluntary basis, while at the moment there are no effective mechanisms of obligatory inclusion.
At the level of primary and secondary education, Roma children attend classes together with other children. Those children who do not speak the Croatian language may well be enrolled in special classes where they receive special attention with a view to learning the Croatian language. This practice is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities. Although this practice has yielded some positive results, priority is given to the organisation of pre-school preparation to help Roma children to overcome the language barrier, learn the basic rules of school conduct, hygienic habits and needs, and strengthen the feeling of affiliation and security in the school environment. The Ministry of Education and Sports, in cooperation with the local administration, has taken a number of measures for this purpose – additional assistance to overcome problems concerning the following and comprehension of school lessons, adaptation of curricula to the needs of Roma children, granting of accommodation for Roma pupils (attending secondary schools), follow up to the process of inclusion, assisting in the preparation of young Roma for the profession of teachers and trainers, providing free school meals and bus transport to and from school and so forth.”
70. The relevant parts of the opinion read:
“Article 12 of the Framework Convention [for the Protection of National Minorities]
...
Education of Roma children and contacts amongst pupils from different communities
...
Present situation
(a) Positive developments
128. The authorities seem to be increasingly sensitive to the problems of Roma children in education and have launched new initiatives, including at the pre-school level, which are aimed at improving the situation and attendance of Roma children in schools. The National Programme for Roma Integration details a number of laudable measures that could help to further the protection of the Roma in the educational system, such as the employment of Roma assistant teachers in regular classes and the provision of free meals for children.
(b) Outstanding issues
129. The placing of Roma children in separate classes appears to be increasingly rare in Croatia, but this practice, which has been challenged in pending legal cases, continues in some schools in Međimurje County. The National Programme for Roma Integration also endorses the idea of separate first-grade Roma-only classes for those who have not attended pre-school and are not proficient in the Croatian language. Such classes do not appear to be set up to foster teaching in or of Roma language or other elements of Roma culture, but rather to assist the children to obtain basic Croatian language and other skills so that they can meet the demands of the educational system. While recognising that these are valuable aims, the Advisory Committee considers that pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned, and where such placing is found necessary, it should be for a limited period only.
...
Recommendations
131. Croatia should fully implement the valuable educational initiatives contained in the National Programme for Roma Integration, including those promoting increased attendance of Roma children in pre-schools. The envisaged remedial first-grade classes should, however, not be conceived a priori as Roma classes, but as classes in which individuals are placed on the basis of their skills and needs, regardless of their ethnicity.
...”
71. The relevant parts of the comments read:
Education of Roma children and contacts amongst pupils from different communities
“The programme of pre-school education is intended to encompass as large a number of Roma children as possible and thus create the precondition for their successful entrance into the primary education system. The Ministry of Science, Education and Sports has also supported the establishment of kindergartens for Roma children in cooperation with Roma NGOs, international organisations and local authorities. The responsible bodies are also helping with the enrolment of Roma pupils in institutions of secondary and higher education and are providing student grants.
By increasing the number of Roma children in pre-school education, conditions are created for their enrolment in regular primary schools.”
72. The relevant parts of the report read:
“III. Situation of the Roma community
...
27. In spite of non-discrimination on a legal plane, the treatment meted out to the Roma minority still raises anxieties since this population continues to undergo social and economic discrimination. It should nevertheless be observed that efforts have been undertaken in institutional matters especially, the government having set up a National Council of Roma chaired by the Deputy Prime Minister. Locally, and around Međimurje in particular, most districts have had water and electricity connected and are served by school transport.
...
A. Segregation in schools
30. The year 2002 saw the worsening of problems around the town of Čakovec which applied a practice of separating Roma and non-Roma pupils in schools. An atmosphere of intolerance took hold; non-Roma parents went so far as to stage a demonstration in front of a school at the start of the 2002/03 school year, denying entry to the Roma children. Under strong national and international pressure, the authorities recognised that these practices existed and undertook to review this question.
31. When I visited Čakovec, I had the opportunity to visit a primary school with a mixed enrolment. I hasten to thank the head and the staff of this school for their reception. My discussions with them satisfied me that the situation had substantially improved thanks to the commitment of all concerned. Certain difficulties still lingered, however. The Međimurje region has a high proportion of Roma and schools have a large enrolment of Roma pupils who make up as much as 80% of certain age bands. But these figures cannot justify any segregation whatsoever between children, who must be equally treated. I sincerely hope there will be no recurrence of the events which took place in the past, and it is imperative to guarantee that the social and ethnic mix is maintained for the sake of having Roma and non-Roma children educated together in the same classes.
32. Difficulties over Roma pupils’ Croatian language proficiency were also reported to me. I would stress the importance of putting all pupils through the same syllabus and the same teaching process in one class. Nonetheless, the knowledge gap problem is not to be evaded. As a remedy to it, it could be useful to set up at national level pre-school classes for children whose mother tongue is not Croatian. That way, they will acquire a sufficient grounding in the Croatian language to be able to keep up with the primary school courses later, while at the same time familiarising themselves with the school institution. In the second place, it rests with the parents to ensure the sound learning of the language and their children’s regular attendance for the entire school course.”
73. In the third section of the report, which concerns discrimination in education, the Commissioner for Human Rights noted that the fact that a significant number of Roma children did not have access to education of a similar standard to that enjoyed by other children was in part a result of discriminatory practices and prejudices. In that connection, he noted that segregation in education was a common feature in many Council of Europe member States. In some countries there were segregated schools in segregated settlements, in others special classes for Roma children in ordinary schools. Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes, which diminished their opportunities of further education and finding employment in the future. At the same time, segregated education denied both Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excluded Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation.
74. It was also noted that special classes or special curricula for Roma had been introduced with good intentions, for the purposes of overcoming language barriers or remedying the lack of pre-school attendance of Roma children. Evidently, it was necessary to respond to such challenges, but segregation or systematic placement of Roma children in classes which followed a simplified or a special Romani-language curriculum while isolating them from other pupils was clearly a distorted response. Instead of segregation, significant emphasis had to be placed on measures such as pre-school and in-school educational and linguistic support as well as the provision of school assistants to work alongside teachers. In certain communities, it was crucial to raise the awareness of Roma parents – who themselves might not have had the possibility to attend school – of the necessity and benefits of adequate education for their children.
75. In conclusion, the Commissioner made a number of recommendations related to education. Where segregated education still existed in one form or another, it had to be replaced by ordinary integrated education and, where appropriate, banned through legislation. Adequate resources had to be made available for the provision of pre-school education, language training and school assistant training in order to ensure the success of desegregation efforts. Adequate assessment had to be made before children were placed in special classes, in order to ensure that the sole criterion in the placement was the objective needs of the child, not his or her ethnicity.
76. The excerpt of the report concerning Croatia reads:
“52. While visiting Croatia in 2004, I learned of a two-year programme, initiated in 2002, to prepare all Roma children for schools, under which children were taught various skills in the Croatian language. Under the Croatian Action Plan for the Decade for Roma Inclusion, special efforts to improve pre-school education for Roma children have been continued with a view to full integration in[to] the regular school system. ...”
77. The Recommendation provides as follows:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity between its members and that this aim may be pursued, in particular, through common action in the field of education;
Recognising that there is an urgent need to build new foundations for future educational strategies toward the Roma/Gypsy people in Europe, particularly in view of the high rates of illiteracy or semi-literacy among them, their high drop-out rate, the low percentage of students completing primary education and the persistence of features such as low school attendance;
Noting that the problems faced by Roma/Gypsies in the field of schooling are largely the result of long-standing educational policies of the past, which led either to assimilation or to segregation of Roma/Gypsy children at school on the grounds that they were ‘socially and culturally handicapped’;
Considering that the disadvantaged position of Roma/Gypsies in European societies cannot be overcome unless equality of opportunity in the field of education is guaranteed for Roma/Gypsy children;
Considering that the education of Roma/Gypsy children should be a priority in national policies in favour of Roma/Gypsies;
Bearing in mind that policies aimed at addressing the problems faced by Roma/Gypsies in the field of education should be comprehensive, based on an acknowledgement that the issue of schooling for Roma/Gypsy children is linked with a wide range of other factors and pre-conditions, namely the economic, social and cultural aspects, and the fight against racism and discrimination;
Bearing in mind that educational policies in favour of Roma/Gypsy children should be backed up by an active adult education and vocational education policy;
...
Recommends that in implementing their education policies the governments of the member States:
– be guided by the principles set out in the appendix to this Recommendation;
– bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels.”
78. The relevant sections of the Appendix to Recommendation No. R (2000) 4 read as follows:
“Guiding principles of an education policy for Roma/Gypsy children in Europe
I. Structures
1. Educational policies for Roma/Gypsy children should be accompanied by adequate resources and the flexible structures necessary to meet the diversity of the Roma/Gypsy population in Europe and which take into account the existence of Roma/Gypsy groups which lead an itinerant or semi-itinerant lifestyle. In this respect, it might be envisaged having recourse to distance education, based on new communication technologies.
2. Emphasis should be put on the need to better coordinate the international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies.
3. To this end member States should make the ministries of education sensitive to the question of education of Roma/Gypsy children.
4. In order to secure access to school for Roma/Gypsy children, pre-school education schemes should be widely developed and made accessible to them.
5. Particular attention should also be paid to the need to ensure better communication with parents, where necessary using mediators from the Roma/Gypsy community which could then lead to specific career possibilities. Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families. There has to be mutual understanding between parents and schools. The parents’ exclusion and lack of knowledge and education (even illiteracy) also prevent children from benefiting from the education system.
6. Appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school.
7. The member States are invited to provide the necessary means to implement the above-mentioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majority pupils.
II. Curriculum and teaching material
8. Educational policies in favour of Roma/Gypsy children should be implemented in the framework of broader intercultural policies, taking into account the particular features of the Romani culture and the disadvantaged position of many Roma/Gypsies in the member States.
9. The curriculum, on the whole, and the teaching material should therefore be designed so as to take into account the cultural identity of Roma/Gypsy children. Romani history and culture should be introduced in the teaching material in order to reflect the cultural identity of Roma/Gypsy children. The participation of representatives of the Roma/Gypsy community should be encouraged in the development of teaching material on the history, culture or language of the Roma/Gypsies.
10. However, the member States should ensure that this does not lead to the establishment of separate curricula, which might lead to the setting up of separate classes.
11. The member States should also encourage the development of teaching material based on good practices in order to assist teachers in their daily work with Roma/Gypsy pupils.
12. In the countries where the Romani language is spoken, opportunities to learn in the mother tongue should be offered at school to Roma/Gypsy children.
III. Recruitment and training of teachers
13. It is important that future teachers should be provided with specific knowledge and training to help them understand better their Roma/Gypsy pupils. The education of Roma/Gypsy pupils should however remain an integral part of the general educational system.
14. The Roma/Gypsy community should be involved in the designing of such curricula and should be directly involved in the delivery of information to future teachers.
15. Support should also be given to the training and recruitment of teachers from within the Roma/Gypsy community.
...”
79. The relevant parts of the Recommendation read:
“The Committee of Ministers ...
1. Recommends that the governments of member States, with due regard for their constitutional structures, national or local situations and educational systems:
...
b. elaborate, disseminate and implement education policies focusing on ensuring non-discriminatory access to quality education for Roma and Traveller children, based on the orientations set out in the appendix to this recommendation;
...
d. ensure, through local and regional authorities, that Roma and Traveller children are effectively accepted in school;
...”
80. The relevant sections of the Appendix to Recommendation CM/Rec(2009)4 read as follows.
“I. Principles of policies
...
5. Member States should ensure that legal measures are in place to prohibit segregation on racial or ethnic grounds in education, with effective, proportionate and dissuasive sanctions, and that the law is effectively implemented. Where de facto segregation of Roma and Traveller children based on their racial or ethnic origin exists, authorities should implement desegregation measures. Policies and measures taken to fight segregation should be accompanied by appropriate training of educational staff and information for parents.
6. Educational authorities should set up assessment procedures that do not result in risks of enrolling children in special education institutions based on linguistic, ethnic, cultural or social differences but facilitate access to schooling. Roma and Traveller representatives should be involved in defining and monitoring these procedures.
...
II. Structures and provision for access to education
9. Roma and Travellers should be provided with unhindered access to mainstream education at all levels subject to the same criteria as the majority population. To accomplish this goal, imaginative and flexible initiatives should be taken as required in terms of educational policy and practice. Appropriate measures should also be taken to ensure equal access to educational, cultural, linguistic and vocational opportunities offered to all learners, with particular attention to Roma and Traveller girls and women.
10. Attendance of pre-school education for Roma and Traveller children should be encouraged, under equal conditions as for other children, and enrolment in pre-school education should be promoted if necessary by providing specific support measures.
...
III. Curriculum, teaching material and teacher training
...
19. Educational authorities should ensure that all teachers, and particularly those working in ethnically mixed classes, receive specialised training on intercultural education, with a special regard to Roma and Travellers. Such training should be included in officially recognised programmes and should be made available in various forms, including distance and online learning, summer schools, etc.
20. Teachers working directly with Roma and Traveller children should be adequately supported by Roma or Traveller mediators or assistants and should be made aware that they need to engage Roma and Traveller children more in all educational activities and not de-motivate them by placing lower demands upon them and encourage them to develop their full potential.
...”
81. The Parliamentary Assembly made, inter alia, the following general observations:
“1. One of the aims of the Council of Europe is to promote the emergence of a genuine European cultural identity. Europe harbours many different cultures, all of them, including the many minority cultures, enriching and contributing to the cultural diversity of Europe.
2. A special place among the minorities is reserved for Gypsies. Living scattered all over Europe, not having a country to call their own, they are a true European minority, but one that does not fit into the definitions of national or linguistic minorities.
3. As a non-territorial minority, Gypsies greatly contribute to the cultural diversity of Europe. In different parts of Europe they contribute in different ways, be it by language and music or by their trades and crafts.
4. With central and east European countries now member States, the number of Gypsies living in the area of the Council of Europe has increased drastically.
5. Intolerance of Gypsies by others has existed throughout the ages. Outbursts of racial or social hatred, however, occur more and more regularly, and the strained relations between communities have contributed to the deplorable situation in which the majority of Gypsies lives today.
6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation.
7. Guarantees for equal rights, equal chances, equal treatment, and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.
8. The guarantee of the enjoyment of the rights and freedoms set forth in Article 14 of the European Convention on Human Rights is important for Gypsies as it enables them to maintain their individual rights.
...”
82. As far as education is concerned, the Recommendation states:
“vi. the existing European programmes for training teachers of Gypsies should be extended;
...
viii. talented young Gypsies should be encouraged to study and to act as intermediaries for Gypsies;
...”
83. This Recommendation states, inter alia:
“...
3. Today Roma are still subjected to discrimination, marginalisation and segregation. Discrimination is widespread in every field of public and personal life, including access to public places, education, employment, health services and housing, as well as crossing borders and access to asylum procedures. Marginalisation and the economic and social segregation of Roma are turning into ethnic discrimination, which usually affects the weakest social groups.
4. Roma form a special minority group, in so far as they have a double minority status. They are an ethnic community and most of them belong to the socially disadvantaged groups of society.
...
15. The Council of Europe can and must play an important role in improving the legal status, the level of equality and the living conditions of Roma. The Assembly calls upon the member States to complete the six general conditions, which are necessary for the improvement of the situation of Roma in Europe:
...
c. to guarantee equal treatment for the Romany minority as an ethnic or national minority group in the field of education, employment, housing, health and public services. Member States should give special attention to:
i. promoting equal opportunities for Roma on the labour market;
ii. providing the possibility for Romany students to participate in all levels of education from kindergarten to university;
iii. developing positive measures to recruit Roma in public services of direct relevance to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local administration;
...
d. to develop and implement positive action and preferential treatment for the socially deprived strata, including Roma as a socially disadvantaged community, in the field of education, employment and housing ...
e. to take specific measures and create special institutions for the protection of the Romany language, culture, traditions and identity:
...
ii. to encourage Romany parents to send their children to primary school, secondary school and higher education, including college or university, and give them adequate information about the necessity of education;
...
v. to recruit Roma teaching staff, particularly in areas with a large Romany population;
f. to combat racism, xenophobia and intolerance and to ensure non-discriminatory treatment of Roma at local, regional, national and international levels:
...
vi. to pay particular attention to the phenomenon of discrimination against Roma, especially in the fields of education and employment;
...”
84. The relevant sections of this Recommendation state:
“The European Commission against Racism and Intolerance:
...
Recalling that combating racism, xenophobia, anti-Semitism and intolerance forms an integral part of the protection and promotion of human rights, that these rights are universal and indivisible, and that all human beings, without any distinction whatsoever, are entitled to these rights;
...
Noting that Roma/Gypsies suffer throughout Europe from persisting prejudices, are victims of a racism which is deeply rooted in society, are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened;
Noting also that the persisting prejudices against Roma/Gypsies lead to discrimination against them in many fields of social and economic life, and that such discrimination is a major factor in the process of social exclusion affecting many Roma/Gypsies;
...
recommends the following to governments of member States:
...
– to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of employment, housing and education;
...
– to vigorously combat all forms of school segregation towards Roma/Gypsy children and to ensure the effective enjoyment of equal access to education;
...”
85. The following definitions are used for the purposes of this Recommendation:
“(a) ’racism’ shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons.
(b) ’direct racial discrimination’ shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification. Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
(c) ’indirect racial discrimination’ shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages, persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”
86. In the explanatory memorandum to this Recommendation, it is noted (point 8) that the definitions of “direct” and “indirect” racial discrimination contained in paragraph 1 (b) and (c) of the Recommendation draw inspiration from those contained in Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation and on the case-law of the European Court of Human Rights.
87. Article 26 of the Covenant provides:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
88. In points 7 and 12 of its General Comment No. 18 of 10 November 1989 on non-discrimination, the Committee expressed the following opinion:
“7. ... the Committee believes that the term ‘discrimination’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.
...
12. ... when legislation is adopted by a State Party, it must comply with the requirement of Article 26 that its content should not be discriminatory. ...”
89. In point 11.7 of its Views dated 31 July 1995 on Communication no. 516/1992 concerning the Czech Republic, the Committee noted:
“... the Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of Article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with Article 26. But an act which is not politically motivated may still contravene Article 26 if its effects are discriminatory.”
90. The relevant part of Article 1 of this Convention provides:
“... the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
...”
91. In its General Recommendation No. 14 of 22 March 1993 on the definition of discrimination, the Committee noted, inter alia:
“1. ... A distinction is contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination] if it has either the purpose or the effect of impairing particular rights and freedoms. This is confirmed by the obligation placed upon States parties by Article 2 § 1 (c) to nullify any law or practice which has the effect of creating or perpetuating racial discrimination. ...
2. ... In seeking to determine whether an action has an effect contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination], [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.”
92. In its General Recommendation No. 19 of 18 August 1995 on racial segregation and apartheid, the Committee observed:
“3. ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds.
4. The Committee therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities. ...”
93. In its General Recommendation No. 27 of 16 August 2000 on discrimination against Roma, the Committee made, inter alia, the following recommendation in the education sphere:
“17. To support the inclusion in the school system of all children of Roma origin and to act to reduce drop-out rates, in particular among Roma girls, and, for these purposes, to cooperate actively with Roma parents, associations and local communities.
18. To prevent and avoid as much as possible the segregation of Roma students, while keeping open the possibility for bilingual or mother-tongue tuition; to this end, to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community, to recruit school personnel from among members of Roma communities and to promote intercultural education.
19. To consider adopting measures in favour of Roma children, in cooperation with their parents, in the field of education.”
94. In its concluding observations of 30 March 1998 following its examination of the report submitted by the Czech Republic, the Committee noted, inter alia:
“13. The marginalisation of the Roma community in the field of education is noted with concern. Evidence that a disproportionately large number of Roma children are placed in special schools, leading to de facto racial segregation, and that they also have a considerably lower level of participation in secondary and higher education, raises doubts about whether Article 5 of the [International Convention on the Elimination of All Forms of Racial Discrimination] is being fully implemented.”
95. The relevant parts of Articles 28 and 30 of this Convention provide as follows.
“1. States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
...
(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
...”
“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”
96. The relevant part of Article 4 provides:
“1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law.
...”
97. Articles 1 and 3 of the Convention against Discrimination in Education of 14 December 1960 provide in their relevant parts as follows.
“1. For the purposes of this Convention, the term ‘discrimination’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular:
(a) Of depriving any person or group of persons of access to education of any type or at any level;
(b) Of limiting any person or group of persons to education of an inferior standard;
(c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or
(d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man.
...”
“In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake:
(a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education;
(b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions;
...”
VIOLATED_ARTICLES: 14
6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-2


ITEMID: 001-92171
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TÁRSASÁG A SZABADSÁGJOGOKÉRT v. HUNGARY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicant is an association founded in 1994, with its seat in Budapest.
7. In March 2004 a Member of Parliament (“the MP”) and other individuals lodged a complaint for abstract review with the Constitutional Court. The complaint requested the constitutional scrutiny of some recent amendments to the Criminal Code which concerned certain drug-related offences.
8. In July 2004 the MP gave a press interview concerning the complaint.
9. On 14 September 2004 the applicant – a non-governmental organisation whose declared aim is to promote fundamental rights as well as to strengthen civil society and the rule of law in Hungary and which is active in the field of drug policy – requested the Constitutional Court to grant them access to the complaint pending before it, in accordance with section 19 of Act no. 63 of 1992 on the Protection of Personal Data and the Public Nature of Data of Public Interest (“the Data Act 1992”).
10. On 12 October 2004 the Constitutional Court denied the request without having consulted the MP, explaining that a complaint pending before it could not be made available to outsiders without the approval of its author.
11. On 10 November 2004 the applicant brought an action against the Constitutional Court. It requested the Budapest Regional Court to oblige the respondent to give it access to the complaint, in accordance with section 21(7) of the Data Act 1992.
12. On 13 December 2004 the Constitutional Court adopted a decision on the constitutionality of the impugned amendments to the Criminal Code. It contained a summary of the complaint in question and was pronounced publicly.
13. Notwithstanding the fact that the Constitutional Court procedure had already been terminated, on 24 January 2005 the Regional Court dismissed the applicant’s action. It held in essence that the complaint could not be regarded as “data” and the lack of access to it could not be disputed under the Data Act 1992.
14. The applicant appealed, disputing the Regional Court’s findings. Moreover, it requested that the complaint be made available to it after the deletion of any personal information contained therein.
15. On 5 May 2005 the Court of Appeal upheld the first-instance decision. It considered that the complaint contained some “data”; however, that data was “personal” and could not be accessed without the author’s approval. Such protection of personal data could not be overridden by other lawful interests, including the accessibility of public information.
16. The applicant’s secondary claim was rejected without any particular reasoning.
“(1) ... [E]veryone has the right to a good reputation, the privacy of his home and the protection of secrecy in private affairs and personal data.”
“(1) ... [E]veryone has the right to express freely his/her opinion and, furthermore, to access and distribute information of public interest.”
“The competence of the Constitutional Court includes:
(b) posterior review of the constitutionality of statutes...”
“(2) The procedure under section 1 (b) may be initiated by anyone.”
“(4) Public information: data, other than personal data, which relates to the activities of, or is processed by, a body or a person carrying out State or municipal tasks or other public duties defined by the law.”
“(1) (a) Personal data may be processed if the person concerned consents to it....”
“Unless exception is made under the law, the right to protection of personal data and the personality rights of the person concerned must not be violated by ... interests related to data management, including the public nature (section 19) of data of general interest.”
“(1) The organs or persons charged with exercising State ... functions shall, within the scope of their competence ..., promote and secure the right of the public to be informed accurately and speedily.
(2) The organs mentioned in subsection 1 hereof shall regularly publish or otherwise make accessible the most important data ... concerning their activities. ...
(3) Those mentioned in subsection 1 hereof shall ensure that anyone is able to access any data of public interest which they may handle, unless the data has been lawfully declared State or service secrets by a competent authority ... or the law restricts the right of public access to data of public interest, specifying the types of data concerned, regard being had to:
(a) the interests of national defence;
(b) the interests of national security;
(c) the interests of the prevention or prosecution of crime;
(d) the interests of central finances or foreign exchange policy;
(e) foreign relations or relations with international organisations;
(f) a pending court procedure. ...”
“(1) If an applicant’s request for data of public interest is denied, he or she shall have access to a court.
(2) The burden of proof concerning the lawfulness and well-foundedness of the refusal shall lie with the organ handling the data.
(3) The action shall be brought within 30 days from the notification of the refusal against the organ which has denied the information sought. ...
(6) The court shall give priority to these cases.
(7) If the court accepts the applicant’s claim, it shall issue a decision ordering the organ handling the data to communicate the information of public interest which has been sought.”
VIOLATED_ARTICLES: 10