CASE OF LAVIDA AND OTHERS v. GREECE - [English Translation] by European Roma Rights Centre "ERRC"

1. The case originated in an application (no. 7973/10) directed against the Hellenic Republic of which twenty-three Greek nationals, named in the annex (“the applicants”), applied to the Court on 7 January 2010 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
2. The applicants were represented by a non-governmental organisation, the Greek Helsinki Monitor (GHM), which is headquartered in Glyka Nera. The Greek Government ( ‘ the Government ’ ) was represented by the delegates of its Agent, Mrs V. Pelekou and Mr I. Bakopoulos, Assessors to the State Legal Council.
2. The applicants complained in particular of a violation of Article 14 of the Convention, in conjunction with Article 2 of Protocol 1 to the Convention.
3. On 21 October 2011, the complaint was communicated to the Government. As permitted in Article 29 § 1 of the Convention, it was further decided that the Chamber would rule simultaneously on the admissibility and merits of the case.
I. THE CIRCUMSTANCES OF THE CASE
A. Overview of the Roma community of the municipality of Sofades and the 4 th primary public school
4. The town of Sofades is situated in the territory of Thessaly, in the centre of western Greece. According to the Government, almost half of the local population, about 3000 people, are of Roma origin and live in an urban area known as the new subdivision of Roma, ‘ Nea Zoé ’. According to the applications, 84 families live in the new subdivision and 300 families continue to live in an old subdivision.
5. At the time of the events, four primary public schools operated in Sofades in buildings managed by the municipality. One of them, the 4 th primary school, was created by Presidential Decree No. 146 on 30 September 1986. In 1996, a new building was constructed. In addition to the twelve classrooms, the school had a gym, a computer lab and a courtyard. This school had been built in the old subdivision of the Roma community and was also close to the new subdivision ‘ Nea Zoé ’, which was associated with the area of this school, as defined by the school map (decision of 14 August 2008 by the head of the office of primary education in Karditsa).
6. According to the government, the number of pupils enrolled for the 2009-2010 school year rose to 511, and at the end of the school year, 127 pupils had completed their primary school studies in this school.
7. The applicants contest these facts. They state that, each year, about 200 pupils were enrolled in the 4 th school but that they did not attend classes due to lack of space. They also specify that the Roma pupils living in the new subdivision situated, according to them, in the area of assignment for the 1 st school, could not register for that one and that they had been transported by bus to the 4 th school, which is 2.5 kilometres away, rather than the 1 st school which is 2.4 kilometres away.
8. Following a merger in 2011, three primary schools currently exist in Sofades: the 1 st school with 6 classes and 89 pupils, the 2 nd with 12 classes and 193 pupils, and the 4 th with 12 classes and 550 students, of which – according to the applicants – 250 regularly attend classes.
B. The schooling of the student applicants during 2009-2010 school year
9. Fifteen of the applicants, who reside in the new subdivision, are students who had been the age of compulsory education in 2009-2010 and the eight others are their parents. Except for one kindergarten student, the other eleven applicants are enrolled in different classes in the following manner: seven in first, three in second, one in the third, two in the fourth, and two in the sixth.
10. All of the students, with the exception of Haralambos Kallioras and Dimitra Kalliora, whose primary education ended in 2009-2010, and Vasilika-Maria Kalliora, who, following a request from her parents was enrolled in the 2 nd school of Sofades for 2010-2011, continued to be enrolled in the 4 th school.
11. According to the Government, none of the concerned parents, except those of Vasiliki-Maria Kalliora, requested either the management of the 4 th primary school or the management of primary education in Karditsa to transfer their children to another school in the area for 2009-2010 or for later on. The special secretary for intercultural education at the Ministry of Education confirmed in a letter of 19 December 2011 addressed to the Government that he had not received such requests.
12. On 21 May 2009, a delegation of the GHM went to the new Roma subdivision and the 4 th school. On 30 May and 20 July 2009, respectively, the delegation wrote a letter addressed to Mr S.V., the special secretary for intercultural education at the Ministry of Education, and to Mr A.S., Minister of Education. The letter reads as follows:
“ The children of the new subdivision of Sofades – with their homes of 140 m 2 that the State and everyone considers as a model subdivision – do not attend, as provided by law, the 1 st primary school of Sofades which is closer to them, but rather the 4 th primary school – which is found in the old Roma subdivision – and which only welcomes Roma pupils. And further, students who are not of Roma ethnicity and live near the 4 th primary school ( ... ) attend the 1 st primary school of Sofades. In other terms, there exists a clear ethnic segregation which violates both Greek law and standards of international human rights and, in particular, the European Convention for Human Rights, as it has been interpreted in the case Sampanis v. Greece ( ... ).
The Roma children ( ... ) have the right to attend the school closer to their residence and to not go to ‘ schools for gypsy students ’. In this latter category belongs the 4 th primary school of Sofades and the 12 th primary school of Aspropyrgos which are further from their place of residence than the 1 st primary school of Sofades and the 10 th primary school of Aspropyrgos. The teaching in these “schools for gypsy students” is either low-quality or inexistent. In any case, compulsory education is not an obligation solely for the parents but also for the State, which must ensure it even if the parents are negligent. The State should provide to teachers and to parents, respectively, special training and necessary support. ( ... )
We consider that the Christian Roma of Ehedoros, of Sofades, of Aspropyrgos and of Spata have the right to access, since September 2009, similar programs [ to those which exist for Muslim children], so as to limit scholastic failure. Furthermore, the Roma children of these communities should be integrated into the schools closer to their subdivisions, schools which should not be “schools for gypsy students” ( ... ). ’
13. The letter remains without response.
14. On 27 August 2009, the GHM also wrote to the Ombudsman of the Republic without receiving a response.
15. The parents of the applicants allege that, on a date not specified in September 2009, they asked the director of the 1 st primary school of Sofades to accept the enrolment of their children. He allegedly refused and maintained that the authorities considered that the children should continue to attend the 4 th school.
16. On 29 September 2009, the Regional Directorate of Education in Thessaly addressed to the Ministry of Education a report on the function of the schools of Sofades and the education of Roma children, of which the relevant parts of the case read as follows:
In the 4 th primary school of Sofades, 511 pupils are enrolled, who attend their classes sporadically, in periods that depend on the movements of their Roma parents. The limits of the school districts associated with the 1 st primary school, and the 2 nd and 3 rd school (who share locals and welcome, respectively, 82, 84, and 84 students) are resultantly fixed.
On 14 August 2008 ( ... ), in order to put an end to social exclusion and to promote integration of Roma in all levels and in all activities of local society, we have thought it appropriate to emphasise ( ... ) that the Roma should not be educated in schools with an exclusively Roma population and suggest the construction of new schools in order to proceed with a redistricting of the school district map.
The municipal board of Sofades sent us the minutes of their meeting of 18 December 2008 by which they let us know that they did not want the schools [4 th primary school and the 4 th kindergarten school] in the two Roma subdivisions to be eliminated ( ... ). We responded to the municipality of Sofades on 5 June 2009, taking care not to come into conflict between it and the local society.
( ... ) it is our view that new schools should be build inside of the subdivision, with recreational and sports areas in accordance with the wishes of parents as expressed by our service and the prefect of Karditsa.
These new schools would contribute to the improvement of education offered to Roma children, to facilitate the collaboration and development of community activities with the other schools in the municipality of Sofades, and finally, to reinforce the harmonious coexistence between the two social groups. Only then, gradually and in the long term, can the integration of Roma children be realised in a nonviolent and effective manner.
The education of Roma children in the already-existing schools of Sofades (1 st, 2 nd, and 3 rd ) is considered impractible at the moment, because of the great number of students and the insufficiency of the infrastructure of these schools.
In September 2009, a parent of a Roma pupil filed a lease of a house ( ... ) which is found in the sector of assignment for the 1 st primary school of Sofades, so we have authorised the enrolment of the student in this school. We have, however, encountered vehement reactions on the part of parents of students at this school.
In addition, two Roma parents who reside in the old Roma subdivision of Sofades, where the 4 th school is situated, asked that their children be registered in the school of the sector of Filia. At first, we approved this enrolment, but we have had vehement reactions from the parents of children in the primary school of Filia and the municipal authorities who demanded the return of the two students to the 4 th school, on the grounds that their permanent residence is located in the old Roma subdivision of Sofades and not in the area of Filia.
17. On 25 November 2009, the GHM sent a letter to the new special secretary for intercultural education at the Ministry of Education similar to the letter mentioned above, from 3 0 May and 20 July 2009, which remains also without response.
18. On 15 December 2009, the Ombudsman of the Republic informed the GHM that he had also written to the new special secretary for intercultural education to inform them of the new position of the new minister on this subject.
19. On a date not specified in 2009, the management of primary education in Karditsa stressed that, if one wanted to solve the problem of Roma exclusion, it was also necessary to stop schooling Roma children in Roma-only schools. The management proposed, to this effect, the construction of a new school outside of the old subdivision and a redrawing of the school district map.
20. On 7 December 2011, during a meeting in the office of the regional management of education in Thessaly, the competent services of the Ministry of Education proposed to take the following measures:
a) to transfer from the 1 st January 2012 all the Roma children enrolled in the first grade of the 4 th school to five other schools in the municipality of Sofades, namely the 1 st and 2 nd primary schools of Sofades and the primary schools of Kypseli, Karpochori and Mataraga, and to assign special teachers to these schools to facilitate their integration in these schools;
b) beginning with the 2012-2013 school year, to not enroll students beginning their primary school cycle in the 4 th school, but to distribute them among the aforementioned schools.
21. On 23 December 2011, the special secretary for intercultural education decided to take the necessary measures for enforcing these propositions. The announcement of these measures in the local and national press provoked an outcry among the parents of non-Roma children, who expressed their opposition to any education of Roma children in classes attended by their children.
22. In a meeting of 26 January 2012 between the Minister of Education, the special secretary for intercultural education, the Mayor of Sofades, the representatives of Karditsa and the representatives of associations of the parents of students, it was decided to take the following measures: a) to maintain the 4 th school in its current operating and to provide more amenities and teachers; b) to construct a new school for Roma children; c) to enroll, if their parents wish it, nine students at the beginning of their schooling who are considered fit to study in preparatory classes which belonged to the 1 st and 2 nd schools, but who would work in the premises of the 5 th kindergarten (situated in the new Roma subdivision and attended exclusively by Roma children); d) from the beginning of the school year 2012-2013, enrol the students from the 5 th kindergarten into different primary schools of the town of Sofades, taking care that their number does not pass 20% of the total of students in every school.
23. On 13 February 2012, answering a question posed by a Greek deputy in the European Parliament concerning the measures adopted on 26 January 2012, the commissioner Viviane Reding highlighted that the European Commission considered that these measures were not sufficient enough to put an end to racial segregation, even if they reflected the willingness to address the problem.
24. According to Articles 7 § 1 and 8 of the Presidential Decree, no. 201/1998 :
“ All children who have reached the age of compulsory schooling are enrolled in the first class of primary school. The registrations take place from the 1 st to 15 th of June of the previous school year ( ... )”
“ 1. The transfers of students from one school to another are permitted in the following cases :
b. The creation of a new school in the sector where the home of the pupil is located, and in this case, after the fixing of the assignment of a new school, the transfer is obligatory and is effective without a request on the part of the parents or of a guardian.
25. The circulation 11684// Γ1/10.09.2008 of the Ministry of National Education and Religious Affairs recommends that the Roma students are distributed between the classes because, “in accordance with the principles of intercultural education, in each school, the students relevant to intercultural education cannot pass 50% of the total number of students per class. In the case where their number exceeds this percentage by class, it should be informed to the advisor of education, who will deal with the problem”.
26. The circulation Φ.3/960/102679/Γ1/20.08.2010 of the same ministry, in its paragraph 12, states the following :
“ It is recalled that the integration of Roma children into normal classes corresponds to a desire and a goal of the Ministry of Education, and that their exclusion and/or segregation compared to other students and their marginalisation are contrary to the Greek Constitution, to the law no. 3304/2005 which disallows the discrimination in matters of education for reasons of racial or national origin, as well as other international documents which bind the country and have supra-legislative power (for example, the European Convention on Human Rights and the United Nations Convention on the Rights of the Child). ”
27. Article 45 of the legislative decree, number 18/1989, codifying the legal provisions relating to the Council of State, is as follows :
“ 1. The appeal for annulment for an abuse of power or violation of the law is only admissible against executory acts of administrative authorities and legal persons governed by public law who are not subject to appeal in any other jurisdiction.
4. In the case where the law requires an authority to settle a particular question by enacting an executive act subject to the provisions of paragraph 1, the appeal for annulment is admissible even against the failure of that authority to enact such an act.
The authority is presumed to refuse to enact the act when the special deadline fixed by the law expires, or after the expiration of a period of three months from the filing of the petition with the administration, which is required to issue an acknowledgement of receipt ( ... ) indicating the day of said filing. An appeal for annulment exercised before the expiration of the aforementioned period is inadmissible.
An appeal for annulment validly lodged against an implicit refusal [of the administration] is equally an appeal against the negative act which, if need be, is subsequently adopted by the administration; however, this act can also be attacked separately ”.
A. The Recommendation CM/Rec(2009) 4 of the Committee of Ministers of Member States for the Education of Roma and Travellers in Europe
28. The recommendation CM/Rec(2009)4 for the Education of Roma and Travellers in Europe, adopted by the Committee of Ministers on 17 June 2009, at the 1061th meeting of the Delegation of Ministers, states in particular :
1. Recommends that the governments of the member states, in respect to their constitutional structures, national or local circumstances, and their education system :
a. draw on the principles stated in the appendix to this recommendation in the context of ongoing or future educational reforms;
b. develop, disseminate, and implement educational policies to guarantee non-discriminatory access to quality education for Roma and Traveller children, based on the guidelines set out in the appendix to this recommendation;
d. ensure, including with local or regional authorities, an effective reception of Roma and Traveller children in the school environment;
Appendix to the Recommendation CM/REC(2009)4
I. Principles relating to the policies to be pursued
1. Educational policies to ensure non-discriminatory access to quality education for Roma and Traveller children should be developed at the national level. Such policies should be formulated to ensure access to quality education in dignity and respect, based on the principles of human rights and the rights of the child. ( ... )
5. The member states should ensure that legal measures prohibiting segregation on a racial or ethnic basis in the field of education are put in place with effective, proportionate, and dissuasive penalties, and ensure the effective implementation of legislation. When de facto segregation of Roma and Traveller children based on the racial or ethnic origin exists, the authorities should implement measures to abolish segregation. Policies and measures taken to combat segregation should be accompanied by appropriate training of educational staff and information for parents.
6. The educational authorities should establish assessment procedures to avoid any risk of placing children in special institutions on the basis of linguistic, ethnic, cultural, or social differences, and to facilitate access to schooling. Representatives of Roma and Travellers should be involved in the definition and monitoring of these procedures.
II. Structures and provisions for access to education
9. Roma and Travellers should enjoy unhindered access to mainstream education at all levels, following the same criteria as the majority of the population. To achieve this goal, inventive and flexible initiatives should be taken in terms of educational policies and practices. Appropriate measures should also be adopted to ensure equal access to all educational, cultural, linguistic, and vocational opportunities available to all learners, and especially the girls and women of the Roma and Traveller communities.
11. The access of Roma and Traveller children to a compulsory education must be facilitated and subject to the same criteria applicable to the majority population, placing special emphasis on the transition from preschool to primary education, and from primary to secondary education. Special measures should be taken to prevent dropping out and to encourage the return to school of children who have not completed compulsory education. ( ... ) »
B. The European Commission Against Racism and Intolerance
29. The report of the European Commission Against Racism and Intolerance (ECRI) on Greece, adopted on 2 April 2009 and published on 15 September 2009, states the following :
“ 53. The ECRI notes, with concern, that Roma continue to be disadvantaged in the realm of education. Certain schools always refuse to enroll Roma children, which can sometimes be explained by the pressure exerted by the parents of non-Roma students. The ECRI is especially concerned about the fact that in certain cases, Roma children are separated from other children within the same establishment or nearby. In one case, the European Court of Human Rights found that Greece had violated Article 14 of the European Convention on Human Rights (prohibition of discrimination in the enjoyment of rights set forth in the Convention), taken together with Article 2 of Protocol no. 1 of the European Convention on Human Rights (right to education). The ECRI has learned that in Spata, where Roma children had initially been denied enrolment at the school, a separate class was created to accommodate them to allow them to gradually adapt to the school environment. While recognizing the necessity of progressive integration in the school system, the ECRI would like to draw attention to the Greek authorities to their opinion on this issue, as set out in General Policy Recommendation no. 10, on racism and racial discrimination in and throughout schooling and education. In this general policy recommendation, the ECRI recommends the creation of preparatory classes for pupils from minority groups in special and time-limited cases, if such a need is justified by objective and reasonable criteria, and if the best interests of the child command as such ”.
C. The International Convention for the Elimination of All Forms of Racial Discrimination
30. Article 1 of this Convention states :
“( ... ) the expression “racial discrimination” aims at any distinction, exclusion, restriction, or preference founded on race, colour, ancestry, or national/ethnic origin, which has the purpose or effect of destroying or impairing the recognition, enjoyment, or exercise, on equal terms, of human rights and fundamental freedoms in political, economic, economic, social, and cultural areas or in any other areas of public life”.
31. In their General Recommendation no. 27 of 16 August 2000, concerning discrimination in regard to Roma, the Committee of the United Nations for the Elimination of Racial Discrimination advocates in particular the following measures in the area of education :
“ 18. Prevent and avoid, as much as possible, the segregation of Roma pupils, while leaving open the possibility of a bilingual education or in the mother tongue; to this end, strive to improve the quality of education provided in all schools and to raise the level of achievement of pupils of the Roma minority, recruit school personnel from Roma communities and promote intercultural education”.
32. In their final observations of 11 April 2007, formulated at the end of the consideration of the report on the Czech Republic (doc. CERD/C/CZE/CO/7), the Committee in particular expressed its concern (paragraph 17) following reports of racial segregation of Roma in the area of education. The Committee noted that a large amount of Roma children is enrolled in ‘ special schools ’. Despite the fact that, as the Czech Republic argued, this situation resulted from the need to adopt measures adapted to their needs, it was also a consequence of discriminatory practices and a lack of sensitivity on the part of the authorities to cultural identity and the difficulties faced by the Roma. The Committee recommended that the Czech Republic increase their efforts in order to evaluate the situation of Roma in the area of education, to develop programs to end their segregation in this area, and to establish a method for determining when Roma children should be enrolled in special schools in order to avoid indirect discrimination on the basis of their cultural identity.
D. The United Nations Organisation for Education, Science, and Culture (UNESCO)
33. Article 1 of the Convention of 14 December 1960, concerning the fight against discrimination in the area of education provides that :
“ 1. For the purposes of this Convention, the term “discrimination” includes any distinction, exclusion, limitation or preference which, based on race, colour, sex, language, religion, political opinion or all other opinion, national or social origin, economic condition or birth, has the purpose or effect of destroying or impairing equal treatment in education and, in particular :
c. Subject to the provisions of Article 2 of this Convention, to establish or maintain separate educational system or institutions for individuals or groups;
A. On the validity of the mandate given to the Greek Helsinki Monitor (GHM)
34. The Government expresses doubts as to the credibility of the mandate given to the GM or to its legal representative, Mr Dimitras, to represent the applicants before the Court. It states in this respect that the power of attorney attached to the application are signed by three persons, but that none of them is among the applicants.
35. The applicants state that these three powers of attorney were part of the annexes to a letter sent by the GHM to the Minister of Education concerning the segregation of Roma pupils in several Greek municipalities, including Sofades.
36. The court notes that the applicants have lodged eight powers of attorney from the parents of the applicant pupils, and which have been communicated together with the other documents in the file. The applicants are therefore duly represented by the GHM.
B. On the alleged violation of Article 34 of the Convention
37. In their observations in response of those of the Government, the applicants denounce for the first time, a violation of Article 34 of the Convention allegedly caused by the Government ’ s refusal to provide them, in the context of the present application, a very important document (in their view) for the facts of the case, namely Appendix 8 to the observations of the Government.
38. The Court notes that the copy of this document, Appendix 8 to the observations of the Government, was incomplete because it was missing certain pages. The Government afterwards lodged with the Registry a complete copy of this document and it was sent to the applicants. No question of violation of Article 34 thus arises in this case.
II. ON THE PRELIMINARY OBJECTIONS OF THE GOVERNMENT
A. Not respecting the period of 6 months
39. The Government first invites the Court to dismiss the application for failure to comply with the six-month time limit. It argues that the introduction of the application in January 2010, after the end of a large part of the current school year, made it late, because it could no longer, according to them, have any consequence on the schooling of the student applicants. The Government adds that the applicants submitted grievances relating to the 2009-2010 school year and that they made no attempt with regards to earlier school years. It concludes that the contentious situation cannot be regarded as a continuous situation.
40. The applicants, for their part, consider that the present case constitutes a case of continued violation, and that in any case, their request was lodged within the period of 6 months: in September 2009, they asked the director of the 1 st school, relying on Article 8 of Decree 201/1998, if they could register their children and if this registration could be done throughout the school year. They add that the measures to abolish the segregation at the 4 th school were still being taken on December 23, 2011.
41. The Court notes that the date of the introduction of the application is 7 January 2010. It also notes that, on 20 July 2009, the applicants addressed a letter to the Minister of Education by which they drew attention to the latter to the ethnic segregation taking place at the 4 th school of Sofades and which violated, in their eyes, both Greek law and the European Convention on Human Rights, and in which they expressed their wish to enrol their children in the 1 st school and to no longer see them attending ‘ schools for gypsy students ’. However, according to elements of the file, this letter remained unanswered (like the letters of the GHM of May 30, July 20, and November 25 2009, and the letters of the Regional Directorate of Education in Thessaly of 29 September 2009 and the Mediator of the Republic on 15 December 2009). The Court points out that these steps, aimed at the authorities to get them to react, and to remedy the situation now complained to the Court by the applicants, were carried out by the applicants within the time limit required by Article 35 § of the Convention. The Government ’ s objection on this point must therefore be rejected.
B. Non- exhaustion of domestic remedies
42. The Government also pleads that the applicants had not exhausted domestic remedies. It argues that the creation of the 4 th school – the decree no. 146 of 30 September 1986 – as well as the act determining its area on the school district map – the decision of 14 August 2008 – are binding administrative acts which may be the subject of an action for annulment before the administrative courts by virtue of Article 45 of Legislative Decree no. 18/1989, when they do not comply with the Constitution, international texts, and legislative provisions.
43. The Government declares to bear in mind that, to date, an appeal for the annulment against the 4 th school ’ s creation is no longer possible, the period in this respect having long since expired. It states that between 1986 and 2009, none of the students of this school felt discriminated against and did not contest its creation. Moreover, it considers that the applicants could have contested the decision of drawing the school district map by denouncing the discriminatory nature of this districting and an infringement of their right to education. It adds that they could have also filed an appeal for the annulment against the alleged refusal of the 1 st primary school ’ s principal to register the applicant pupils in that school. According to the Government, the letter that the GHM had sent to the Minister of Education on 20 July 2009 cannot act as an appeal for annulment nor to dispense the applicants from the obligation to exhaust domestic remedies.
44. The applicants argue that the persistent function of ‘ ghetto schools ’ constitutes a structural problem, and they add, invoking the Court ’ s case law, that this situation relieves them of the obligation to exhaust internal domestic remedies. In their eyes, even if the recourses mentioned by the Government could be considered effective, they could not resolve the structural nature of the problem they are confronted with. Moreover, the interested parties affirm that they are not looking to obtain the closure of the 4 th school, nor its transformation into a school for ethnic minorities. Likewise, they state that they have no interest to file an appeal for the annulment against the refusal to enrol their children in the 1 st school or an appeal for a modification of the school district the school is included in. Their sole objective would have been to draw the authorities ’ attention to their desire to attend a primary school tolerant of mixing.
45. The Court reiterates that Article 35 § 1 of the Convention is intended to afford the member states the opportunity to prevent or remedy the violations against them before the Court is occupied thereof. The provision, however, does prescribe the exhaustion of effective and available recourses, that is to say, existing to a sufficient degree of certainty and capable of directly remedying the alleged violations of the Convention. An applicant cannot be considered to have failed to exhaust domestic recourses if they can demonstrate, by producing internal decisions or other relevant proof, that an available recourse that they did not exercise was doomed to fail ( Kleyn and others v. Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003-VI).
46. In this case, the Court notes from the outset that, contrary to the Government ’ s assertions, neither the applicants nor their representative limited themselves to sending a single letter to the authorities but in total, sent three letters (paragraph 42 above). In addition, the Regional Directorate of Education in Thessaly and the Mediator of the Republic had equally drawn the attention of the Ministry to the situation of the applicants. However, nothing has been done as a result of these letters. The Court also notes that the complaint of the applicants concerns the segregationist nature, according to those concerned, of the 4 th school. It also notes that the provisions of domestic legislation in this area and internal practice, as indicated in the different circulars of the Ministry of Education, notably 1684//Γ1/10.0 9.2008 (paragraphs 25-27 above) provide for the possibility of distributing pupils of the 4 th school, including the applicant students, to the other schools of the municipality of Sofades. It is clear from the facts of the case that the Ministry of Education recognised, as early as 2008, the need for an anti-segregationist policy in Sofades and that it designed measures to that end. However, it is clear that these measures could not be implemented because of opposition from local society.
47. The Court does not see how a judgment of an administrative court, even supposing that it would have been favourable to the applicants, would have made it possible to come to a result conforming with their expectations. Indeed, a judicial decision requires its execution by the administration, and the Court considers that in regard to the facts of the case, the authorities would have found themselves in the same impasse as that which is now the subject of examination. It also notes that the examples judgments presented by the Government to show that administrative acts, adopted pursuant to education law, are subject to an appeal for annulment with respect to individual cases of a different type than the one in this case.
48. As a consequence, the Court believes that the appeals for annulment mentioned by the Government would, in this case, not have had a chance of success had they been attempted. The Court accordingly rejects the objection raised by the Government.
49. The Government argues that the applicant pupils allegedly harmed by the attitude of the State, and the adults exercising parental authority over them cannot be claimants, in a collective manner.
50. The applicants do not present any comment on this point.
51. The Court considers that the distinction made by the Government is not relevant in this case. In effect, it recognises the quality of ‘ victim ’ both to the minor applicants placed in situations similar to those of the applicants in this case ( D.H. and others v. Czech Republic [GC], no. 57325/00, ECHR 2007-XII, and Oršuš and others v. Croatia [GC], no. 15766/03, 16 March 2010), as well as to the applicant adults, parents of the minor students ( Sampanis and others v. Greece, no. 32526/05, 5 June 2008).
52. The court finds that the application is not manifestly unfounded within the meaning of Article 35 § 3 a) of the Convention. It notes that that it faces no other grounds for inadmissibility. It should therefore be declared as admissible.
III. ON THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL NO. 1 OF THE CONVENTION
53. The applicants complain of the placement of some of them, namely the children of each of the eight families, in a primary school reserved for Roma pupils. They claim that this placement resulted in depriving the applicant pupils of a genuine education. They claim, in this regard, a violation of Article 14 of the Convention in conjunction with Article 2 of Protocol no. 1 of the Convention. These documents are as such worded :
“The enjoyment of rights and freedoms recognised in the ( ... ) Convention must be ensured without distinction of any kind, particularly based on sex, race, colour, language, religion, political opinions or any other opinions, national or social origin, belonging to a national minority, wealth, birth or any other situation”.
“No one can be denied the right to education. The State, in the exercise of its functions in the field of education and instruction, must respect the right of parents to provide such education and instruction, in accordance with their religious and philosophical beliefs”.
54. The Government believes that the claims of the applicants in this case are characterised by a generality of the presented arguments. It believes that these only relate to the ethnic composition of the school population of the 4 th school. It asserts that the applicants have not provided any evidence to show that the operation of this school in 2009-2010 has a detrimental impact on them and placed them in a much worse position than other individuals in a comparable situation. The applicants would have studied the school curriculum for any primary pupil, they would have acquired the same school validations as any other pupil of the same primary cycle, and consequently, they would have had the same possibilities of access to a secondary education. For the Government, there is no element of direct discrimination against the applicants in this case.
55. The Government then states that the students of the 4 th school were assigned to it on the basis of the criteria applied to public school students, namely, the distance between their home and the school. It states that the attendance of the school in question by students from the large Roma community living nearby did not make it a minority school or a special school. It indicates that, unlike the applicants in the cases D.H and others, Sampanis and others, and Oršuš (above), the applicant pupils in this case were not placed in specialised education schools or in special classes in ordinary schools, which would have had the effect of giving them an inferior level of education.
56. The Government further believes that the applicants were not assigned to the school in question in a binding manner. They would have enrolled voluntarily without having tried to enrol in another school, either during the 2009-2010 school year or afterwards (with the exception of Vasilika-Maria Kalliora, who would have been admitted into the 2 nd primary school of Sofades in 2010-2011). Two of the applicants, Haralambos Kallioras et Vaïa Polyzou, finished their schooling successfully in 2010 and would have joined the 1 st and 2 nd secondary schools of Sofades.
57. The applicants allege that they are victims of both direct and indirect discrimination. They claim that their grievance is based on the existence – according to them that is tolerated by the State – of ghetto schools in Greece, whose existence is in total contradiction with both national and international law. By its attitude in the present case, the Government would have disregarded the Court ’ s judgment in the case Sampanis and others (aforementioned) and raised doubts as to its willingness to provide all the evidence relating to the facts of the case.
58. Finally, the applicants stress that, despite the re - division of the school map in 2008 (which would have spread out the affected section of the 4 th school in order to include the new Roma subdivision associated with the 1 st school), the Roma students of the new subdivision did not attend the first school 2.4 kilometres away from them, but had been transported by bus to the 4 th school, a distance of 2.5 kilometres from their subdivision. The re - division of the school map in 2008 had simply covered the persistent segregation of Roma with a veil of “formal legality”.
59. Finally, the applicants believe that the lack of the authorities to take measures to close the 4 th school and to move the students from there to other schools of the municipality of Sofades is not the result of legal or practical obstacles but is the result of opposition to the integration of Roma students manifested by the local society, before which the State would bend.
60. The Court reiterates that, according to its well-established case law, the right to education, which is provided in the first sentence of Article 2 of Protocol no. 1 of the Convention, guarantees to everyone within the jurisdiction of its member states, ‘ a right to access to existing schools at a given time ’, the access to them being only part of this fundamental right. In order for this right to ‘ produce useful effects it is necessary, in particular, that the individual who holds it should have the opportunity to benefit from the education provided, that is to say, the right to obtain, in accordance with the rules in force in each State, in one form or another, the official recognition of the studies completed ’ ( case ‘ relating to certain aspects of the language regime in education in Belgium ’, 23 July 1968, §§ 3-5, series A no. 6; Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, series A no. 23; Leyla Şahin v. Turkey [GC], no. 44774/98, § 152, ECHR 2005-XI, and Oršuš and others, aforementioned, § 146).
61. In the case Oršuš and others (aforementioned), the Court stressed that, although this case concerned the individual situation of the applicants, it could not disregard that they belonged to the Roma minority and that it would take into account in its analysis that, by its history, the Roma minority was a special type of vulnerable minority in need of special protection. The Court also recalls that, as evidenced by the activities of many European and international bodies and the recommendations of the bodies of the Council of Europe, this protection also extends to the field of education. As indicated in previous cases, the vulnerability of Roma/Gypsies requires special attention to their needs and their way of life both in the regulatory framework and in decision-making in particular cases ( Oršuš and others, aforementioned, §§ 147-148).
62. The Court also points out that Article 14 does not exist in isolation, but that it plays an important role in complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations against any discrimination in the enjoyment of the rights set out in these other provisions. When a separate breach of a normative clause of the Convention is found, invoked both on its own and in conjunction with Article 14. It does not usually need to consider the case from the perspective of the latter but does deserve as such if a clear unequal treatment in the enjoyment of the right in question is a fundamental aspect of the dispute ( Dudgeon v. United Kingdom, 22 October 1981, § 67, series A no. 45, Chassagnou and others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III, and Timichev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).
63. The Court finally recalls that it has also admitted that a discrimination that is in contrary to the Convention can result from a factual situation ( Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006-VII). When an applicant produces a prima facie case of discrimination with regard to the effect of a measure or practice, the burden of proof then falls on the respondent State, which must show that the different in treatment is justified ( D.H and others, aforementioned, §§ 180 and 189).
2. Application of these principles to the present case
64. The Court firstly considers that there is no doubt, as it is apparent from the facts of the case and the arguments of the parties, that the 4 th primary school of Sofades is a school exclusively attended by Roma children. There are not only Roma children that live in the old subdivision of Sofades, where the school is situated, but also children that live in the new subdivision and who are transported by bus (paragraph 8 above). The Court observes that, despite the rule that pupils are enrolled in schools located near their homes, no non-Roma children who live in the sector designated to the 4 th school are enrolled in it.
65. The Court next notes, as the Government itself pointed out, that the 4 th school was not created for exclusively Roma children, and does not include preparatory classes or support for Roma children wishing to enter normal public schools after having attained a sufficient academic standing. The 4 th school is a regular school offering a program similar to that of other public primary schools and allowing, at the end of the cycle, a transition to secondary school.
66. The Court further notes that the competent authorities, namely the Ministry of Education, were informed of the existence of ethnic segregation of the Roma in Sofades in the area of education. This situation was exposed in the letter of 30 May and 20 July 2009 addressed to the Ministry (paragraph 13 above), and also in the report sent by the Regional Directorate of Education in Thessaly to the same ministry (paragraph 17 above). The report in question drew their attention to the existing situation and requested instructions to remedy it. In order to put an end to social exclusion and promote the integration of Roma in all levels and activities of the local society, it advocated avoiding schooling for Roma in schools attended exclusively by Roma pupils. It suggested that new schools be constructed, and that the school district map be re-districted. It noted that the schooling of Roma children in the already-existing schools of Sofades (the 1 st, 2 nd, and 3 rd ) is impossible because of the large number of students and the insufficient infrastructure of these schools. Finally, it pointed out the refusal of the municipal council of Sofades to close the 4 th school and especially the reactions, which it described as disproportionate, of the parents of non-Roma students on the enrolment Roma children in the other schools of Sofades.
67. The Court also notes, on a date not specified in 2009, the administration for primary education in Karditsa highlighted that if the problem of Roma exclusion was to be solved, it was also necessary to stop the schooling of Roma children in schools reserved for Roma (paragraph 20 above).
68. The Court also observes that the competent authorities have officially acknowledged the existence of a segregationist situation in this school and the need to put an end to it. In fact, the steps taken by the aforementioned bodies prompted the Ministry of Education, at least initially, to tackle the problem : thus, in 2011, they proposed to transfer, from 1 st January 2012, all the Roma children enrolled in the 1 st class of the 4 th school to five other primary schools of Kypseli, Karpochori and Mataraga, and to provide these schools special teachers for the facilitation of the new students; additionally, the ministry proposed, from the school year 2012-2013, to no longer enrol students beginning their primary cycle into the 4 th school, and to rather divide them among the aforementioned schools. In addition, the special secretary for intercultural education decided to take the necessary measures to put these propositions in place (paragraphs 21-22 above).
69. The Court notes that these propositions, adopted from 2010, did not materialise, however, because of the hostility shown by the parents of non-Roma children (paragraph 22 above). As such, on 26 January 2012, it was decided to take the following measures: a) keep the 4 th school in function and provide additional equipment and teachers; b) build a new school for Roma children; c) enrol, if their parents so desired, nine students beginning their education and considered qualified to attend classes at the 1 st and 2 nd school in preparatory classes, but who would work in the premises of the 5 th kindergarten (situated in the new Roma subdivision and attended exclusively by Roma children); d) from the beginning of the school 2012-13, enrol the students of the 5 th kindergarten in different primary schools of the town of Sofades, taking care that their number does not pass 20% of the total of students in each school (paragraph 23 above).
70. The Court cannot agree with the Government ’ s argument that for the year 2009-2010 it would have been sufficient for the applicant parents to ask for the transfer of the children to another ordinary school in Sofades in order to not feel discriminated. In this regard, it refers to, on one hand, to the reduced capacity of other schools (paragraph 9 above) and, on the other hand, to the findings of the Regional Directorate of Education in Thessaly on the reaction of parents of non-Roma pupils when three Roma children were in enrolled in the other schools in Sofades in 2009 (paragraph 17 above).
71. The Court considers it useful to recall that the principle of non-discrimination of Roma in the field of education is included in several international documents. The Recommendation CM/Rec(2009)4 of the Committee of Ministers of the Council of Europe recommended that education policies to ensure non-discriminatory access to quality education for Roma children be developed at the national level, and that Member States ensure that legal measures prohibiting segregation on an ethnic/racial basis in the field of education be put in place (paragraph 29 above). In its general recommendation no. 27 of 16 August 2000, concerning discrimination towards Roma, the Committee of the United Nations for the Elimination of Racial Discrimination recommends to the States to prevent and to avoid, as much as possible, the segregation of Roma pupils (paragraph 32 above). The Convention of UNESCO concerning the fight against discrimination in the area of education, qualifies discriminatory measures as those designed to establish or maintain separate education systems or institutions for individuals or groups (paragraph 34 above). The Court highlights that most of the content of these various international documents is also reflected in the circulars 11684//Γ1/10.09.2008 and Φ.3/960/102679/Γ1/20.08.2010 of the Ministry of Education (paragraphs 26-27 above).
72. In view of the foregoing, and even in the absence of any discriminatory intent on the part of the State, the Court considers that the position of perpetuating the education of Roma children in a public school attended exclusively by Roma, and the renouncing of effective anti-segregationist measures – for example, sending Roma children to mixed classes in other schools in Sofades or proceeding to redistrict the school district map – partially because of the opposition shown by parents of non-Roma students, cannot be considered as objectively justified by a legitimate aim. The situation complained of by the applicants for the year 2009-2010 lasted until the start of the 2012-2013 school year (see, mutatis mutandis, Sampani and others v. Greece, no. 59608/09, 11 December 2012).
73. Accordingly, there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol no. 1 to the Convention on behalf of the applicants.
IV. ON THE OTHER ALLEGED VIOLATIONS
74. The applicants further complain of the lack of an effective remedy through which they could have raised their complaints under Article 14 of the Convention taken in conjunction with Article 2 of Protocol no. 1 to the Convention. They invoke Article 13 of the Convention in this respect.
75. Noting that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it does not run into any other ground of inadmissibility, the Court declares it admissible.
76. However, the Court considers, having regard to its findings regarding the objection of non-exhaustion of domestic remedies, that there is no need to examine this complaint.
V. ON THE APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
77. Articles 41 and 46 § 1 of the Convention set in place :
“If the Court declares that there has been a violation of the Convention or its Protocols, and if the domestic law of the contracting High Party makes it possible to erase the consequences of the breach only imperfectly, the Court shall grant the injured party, if applicable, just satisfaction”.
“ 1. The contracting High Parties undertake to abide by the final judgment of the Court in any case in which they are parties. »
78. The applicants each claim 8000 euros (EUR) for non-pecuniary damage. Additionally, invoking Article 46 of the Convention, they plea the Court to request the Government to adopt a national plan of action to, on one hand, gradually eradicate the segregation of Roma in schools in Greece, and on the other hand, redistribute students in public schools of Sofades to reflect the town ’ s population diversity.
79. The Government states that damages awarded in compensation for an infringement of the right to access to education cannot be pecuniary. In this regard, it asserts that the applicant parents always have the possibly to request the registration of the applicant pupils in another public school. Moreover, it considers that the finding of a violation constitutes in itself a sufficient just satisfaction. Nevertheless, in the event that the Court awards damages, it invites the Court to reduce the claimed amount, which is exorbitant in its view. It considers that the sum requested is all the more unjustified because it is sought for each applicant and not for each family or pupil. It adds that the financial situation of the respondent State should also be taken into account, in order to ensure that the amount of just satisfaction is set on an equitable basis. With regards to the application of Article 46, it [the Government] considers it irrelevant: the present application does not fall within the framework of a ‘ pilot ’ procedure, and no structural problem arises in this case.
80. The Court considers that the applicants undoubtedly suffered non-pecuniary damage – in particular because of the frustration due to the discrimination of which they were victims – and that the finding of a violation of the Convention, for a situation which lasted until the start of the 2012-2013 school year, does not constitute sufficient reparation in this respect. However, it also judges the amount claimed by each of the parties to be excessive. Making its assessment on an equitable basis, it awards each of the applicant families 1000 EUR for non-pecuniary damage.
81. In addition, with regards to the applicants ’ claim under Article 46 of the Convention, the Court recalls that a judgment finding a violation entails, for the respondent State, a legal obligation under that provision of the Convention to put an end to the violation and to its erase its consequences so as to restore, as much as possible, the situation prior to that violation. It follows in particular that the respondent State, found to be responsible for a violation of the Convention or its Protocols, is called upon to not only to pay the applicants the sums awarded as just satisfaction, but also to choose, under the control of the Committee of Ministers, the general and/or individual measures, where appropriate, to be adopted in its internal legal order ( Ilaşcu and others v. Moldova and Russia [GC], no. 48787/99, § 487, ECHR 2004-VII, and Assanidzé v. Georgia [GC], no. 71503/01, § 198, ECHR 2004-II). Moreover, it follows from the Convention, and in particular from Article 1 thereof, that in ratifying the Convention, the contracting states undertake to ensure that their domestic law is compatible with it. As a consequence, in this case, it is for the respondent State to eliminate, in its domestic legal order, any possible obstacle to an adequate recovery of the applicants ’ situation in the light of the conclusions of the present judgment ( Dimitras and others v. Greece (no. 2), nos. 34207/08 and no. 6365/09, § 43, 3 November 2011)..
82. The applicants also jointly claim EUR 5000 for the costs and expenses incurred before the domestic authorities and before the Court. They claim that their representatives, lawyers of the Greek Helsinki Monitor, worked fifty hours in total for their case (sixteen hours for a meeting with them in Sofades, and twelve hours to written ten letters to the Government) and twenty-two hours for the drafting of the application and the observations in response, at the hourly rate of EUR 100. They request that this sum be paid directly into the bank account of the Greek Helsinki Monitor.
83. The Government submit that the applicants ’ actions with the internal administrative authorities did not result in costs. As for the costs and fees relating to the presentation of the application by the legal team of a non-profit non-governmental organisation (such as the Greek Helsinki Monitor), it adds that they must be supported by evidence equivalent to that produced by lawyers who practice in a liberal capacity and established according to rules of national taxation. The document, titled ‘ Bill of Costs and Expenses ’, drawn up by the applicants ’ representative, does not meet the above conditions and, in particular, does not constitute an invoice duly established by the Tax Service. Moreover, no evidence of the necessity of the claimed costs and of their reasonableness was produced.
84. The Court reiterates that, according to its case-law, an applicant can obtain reimbursement of their costs and expensive only insofar as their reality, their necessity, and the reasonableness of their rate are established. It furthers recalls that it has decided, in certain cases, to pay directly the amount awarded for costs and expenses into the account of the applicants ’ representatives (see, among many others, Cobzaru v. Romania, no. 48254/99, 4 March 2008; Stoica v. Romania, no. 42722/02, 16 December 2008; Rupa v. Romania, no. 58478/00, 2 April 2009; Georgiev v. Bulgaria, no. 31211/03, 2 April 2009; Vihos v. Greece, no. 34692/08, no. 34692/08, 10 February 2011, and Dimitras and others ( no. 2 ), cited above).
85. The Court considers that the insufficiency of the document evidence noted by the Government cannot overshadow the fact that the Greek Helsinki Monitor provided effective legal assistance to the applicants. The fact that Mr Dimitras and his associates belong to a non-governmental organisation, which is by definition devoid of profit-making, does not mean that this organisation should provide free legal assistance. The Court has already held that lawyers working for such organisations cannot be denied remuneration and that a credible and detailed breakdown of working hours constitutes acceptable evidence of the costs incurred ( Klaus and Iouri Kiladze v. Georgia, no. 797 5/06, §§ 91-94, 2 February 2010; Volkova v. Russia, no. 48758/99, § 46, 5 April 2005; Fadeïeva v. Russia, no. 55723/00, § 149, CEDH 2005-IV, and Tsintsabadze v. Georgia, no. 35403/06, § 105, 15 February 2011). Making an assessment on an equitable basis, the Court considers it reasonable in the present case to award the applicants jointly the sum of 2000 EUR, to be paid into the Greek Helsinki Monitor ’ s bank account.
86. The Court considers it appropriate to model the default interest rate on the interest rate on the European Central Bank ’ s marginal lending facility by three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY,
1. Declares the request admissible;