ECtHR (Czech Republic)
D.H. and Others v. The Czech Republic
European Court of Human Rights
13 November 2007
Other International Provisions:
European Convention on Human Rights (“ECHR”), Articles 14, 35, 36, 41, and 46
Protocol 1 of the ECHR, Article 2
Council of Europe Framework Convention for the Protection of National Minorities
International Covenant on Civil and Political Rights, Article 26
International Convention on the Elimination of All Forms of Racial Discrimination, Article 1
Convention against Discrimination in Education, Articles 1, 2 and 3
UNESCO's Declaration on Race and Racial Prejudice
Schools Act 1984
Schools Act 2004
Decree no. 127/1997, Articles 2, 6 and 7
Decree no. 73/2005, Articles 1 and 2
This case was brought on behalf of 18 Roma children from the Ostrava region of the Czech Republic. Between 1996 and 1999, the children were assigned to “special schools” for children with learning difficulties where they received education from a more basic curriculum. In 2000, the children submitted a complaint to the European Court of Human Rights, arguing that this treatment violated their right to education without discrimination in breach of Article 14 taken together with Article 2 of Protocol 1 of the European Convention on Human Rights (“Convention”). They submitted evidence indicating that Roma children were systematically assigned to special schools based on their racial or ethnic origin rather than their intellectual capacities, and denied entry to the general education system. In February 2006, a first decision was handed down in the case by a chamber of the court, which found that the Convention had not been violated. The case was then referred to the Grand Chamber which subsequently agreed to hear the case afresh.
Issue and resolution:
Right to education and discrimination. The Grand Chamber of the Court ruled, by 13 to four, that the practice of channeling Roma children into special schools and the Czech law on which it was based amounted to discrimination against Roma children with regard to their right to education, in violation of Article 14 of the Convention read in conjunction with Article 2 of Protocol 1. The court awarded symbolic damages of EUR 4,000 to each child applicant.
The Court found that the evidence submitted by the children gave rise to a strong presumption of indirect discrimination. The Court relied on statistical evidence indicating that 56% of all pupils placed in special schools in Ostrava were Roma even though they represented only 2.26% of the total number of pupils attending primary school in Ostrava. Further, whereas only 1.8% of non-Roma pupils were placed in special schools, the proportion of Roma pupils in Ostrava assigned to special schools was 50.3%.
The Court found that the difference in treatment between Roma children and non-Roma children was not objectively and reasonably justified, and was therefore discriminatory in violation of Article 14 in conjunction with Article 2 of Protocol No. 1. The Court considered that there was a real danger that the tests used in the Czech Republic to assess learning abilities were biased and that the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them. Furthermore, even if a parent consented to their child being placed in a special school, this could not be taken to waive the child’s right to not be subjected to racial discrimination.
Excerpts citing CRC and other relevant human rights instruments:
See paragraphs 92 to 102 of the judgment for citations of relevant provisions of human rights instruments, including full citations of Articles 28 and 30 of the CRC.
While these proceedings were still pending before the Court, the Czech government undertook changes to its education system, repealing the discriminatory legislation in question and officially abolishing special schools in 2005. However, Roma activists argue that the situation on the ground is fundamentally unchanged and that Roma children still lack equal access to quality education in mainstream schools.
CRIN believes this decision is consistent with the CRC. Article 28 protects the right of the child to education, and obliges states to ensure equal opportunity in this regard. Furthermore, Article 2 imposes on states a duty to ensure the rights in the CRC to each child without discrimination of any kind, irrespective of the child’s race, language, ethnic or social origin or other status.
Application no. 57325/00
Link to Full Judgment:
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