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D.H. and Others v Czech Republic

Name of Case

D.H. and Others v Czech Republic

Keywords, ForumContext, On what breach of law was the case brought?, Process, Result of case, Effect of case, What has this case done to further the right to education?

 Keywords

Indirect discrimination, Roma, racial discrimination, acceptability, national law, European Court of Human Rights, European Convention on Human Rights, European Roma Rights Center, compensation

Forum

European Court of Human Rights, 14 November 2007

Context

European Roma Rights Center (ERRC) research in the city of Ostrava in the Czech Republic, demonstrated that school selection processes frequently discriminate on the basis of race:

-          Over half of the Romani child population is schooled in remedial special schools.

-          Over half of the population of remedial special schools is Romani.

-          Any randomly chosen Romani child is more than 27 times more likely to be placed in schools for the learning disabled than a similarly situated non-Romani child.

-          Even where Romani children manage to avoid the trap of placement in remedial special schooling, they are most often schooled in substandard and predominantly Romani urban schools.

In addition, tests used to assess the children’s mental ability were culturally biased against Czech Roma, and placement procedures allowed for the influence of racial prejudice on the part of educational authorities.
On what breach of law was the case brought?

Article 14 of the European Convention (prohibiting discrimination), taken together with Article 2 of Protocol No. 1 (securing the right to education).

Process

In 1999, the ERRC together with local lawyers filed unsuccessful complaints in the Czech courts on behalf of eighteen Roma children.* In 2000, the applicants turned to the European Court of Human Rights, alleging that their assignment to “special schools” for children with learning disabilities contravened the European Convention.

*The rule of exhaustion of domestic remedies: A crucial rule governing the admissibility of a complaint is that you must, in general, have exhausted all remedies in the state where the violation occurred before bringing a claim to an international body. This usually includes pursuing your claim through the local court system. There are, however, exceptions to this rule. If the exhaustion of remedies is unreasonably prolonged, or plainly ineffective or otherwise unavailable to you (owing, for example, to denial of legal aid in a criminal case), you may not be required to exhaust domestic remedies. NB. See also the case of F.L.A.G et al. V Zaire in the Availability of Education cases.

Result of case

The Court held, by a vote of 13 to 4, that segregating Roma students into special schools was indeed a form of unlawful discrimination in breach of Article 14 of the European Convention (prohibiting discrimination), taken together with Article 2 of Protocol No. 1 (securing the right to education).
The Court awarded 4,000 Euros to each of the applicants in respect of non-pecuniary damage and 10,000 Euros jointly in respect of costs and expenses.
Effect of case

Despite the postive judgement, racial segregation in education remains widespread throughout the Czech Republic and in neighbouring countries. European Roma Rights Center field research in five countries has consistently documented the separate and discriminatory education of Roma, as well as additional practices by educational authorities that result in the segregation of Roma in schools.

The European Roma Rights Centre website is www.errc.org

What has this case done to further the right to education?

A violation of Article 14 of the Convention can occur in relation to a pattern of discrimination as well as a specific act.

Different treatment as a result of legislation can amount to discrimination even if there was no intent on the part of the State to discriminate - indirect discrimination (see the section on direct and indirect discrimination on the website.)

Even where the wording of a particular law is neutral, its application in a racially disproportionate manner without justification which places members of a particular racial or ethnic group at a significant disadvantage may amount to discrimination. Note. Those in local authorities are acting on behalf of the State just as much as those who draft the laws – if they apply the law in a discriminatory manner, it is the State that is acting in a discriminatory manner.

The Court stated that where an applicant alleging indirect discrimination makes a reasonable argument that the effect of a measure or practice is discriminatory, the burden of proof then shifts to the State to show that the difference in treatment is not discriminatory. 

As the prohibition of racial discrimination is so important, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest i.e. an individual cannot state that they accept being discriminated against on the basis of their race.

The Court noted that as a result of their history, the Roma have become a specific type of disadvantaged and vulnerable minority who require special protection.