D.H. and Others v. the Czech Republic
European Court of Human Rights
13 November 2007
According to the statistics, in Czech Republic Roma children were much more likely to be admitted to the special schools than other children and consequently created majority of pupils of special schools.
The applicants, children of Roma origins, were all admitted to special school instead of ordinary primary school after testing carried out in an educational psychology centre. At first their parents consented to the decision. However, later they complained about it claiming that admission of Roma children to the special schools created segregation and was unfounded, as the tests carried out could not show sufficient reasoning to not to admit the children to ordinary primary school. Furthermore, after finishing the special school the children had fewer opportunities to further studies due to the inferior curriculum in special schools. All their appeals were unsuccessful.
The applicants complained that they had been discriminated against in that because of their race or ethnic origin they had been treated less favourably than other children in violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol 1 of the Convention.
The Court reminded that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. Furthermore difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is considered a violation of prohibition of discrimination.
As to the case in issue, the Court found that although the national regulation was couched in neutral terms, it in practice discriminated against a group – children of Roma origins. Therefore this situation amounted to indirect discrimination.
The Court considered that the statistical data provided by the applicants and several international organizations demonstrated the difference in treatment of children with Roma origins and other children. By finding that the tests used to decide on the children’s schooling were biased and not evaluated properly, it ruled that these tests could not serve as justification for the impugned difference in treatment. As to the consent of the parents, the Court was not convinced that the parents themselves coming from disadvantage community had all the necessary information to decide upon the issue.
Concluding the Court appreciated the Czech government’s wish to improve the situation with the Roma community. Yet it ruled that in the particular case the relevant legislation as applied in practice had a disproportionately prejudicial effect on the Roma community in violation of prohibition of discrimination taken in conjunction with the right to education.