Information Note on the Court’s case-law 83

February 2006

D.H. and Others v. the Czech Republic - 57325/00

Judgment 7.2.2006 [Section II]

Article 14

Discrimination

Placement of Roma gypsy children in “special” schools: no violation

Article 2 of Protocol No. 1

Right to education

Placement of Roma gypsy children in “special” schools: no violation

[This case was referred to the Grand Chamber on 3 July 2006]

Facts: The applicants are all Czech nationals of Roma origin who, between 1996 and 1999, were placed, either directly or after a certain period in ordinary primary schools, in “special schools”, a category of schools within a larger group called “specialised schools”, for children with learning difficulties unable to attend a “basic” or other specialised elementary school. By law, the decision to place a child in a special school was taken by the head teacher on the basis of the results of tests devised to measure the child's intellectual capacity and carried out in an educational psychology and child guidance centre, and requires the consent of the child's parent or legal representative. It was apparent from the case file that the applicants' parents had given their consent to their child's placement in a special school or had even expressly requested it. The appropriate written decisions had been given by the head teachers of the schools concerned and had been notified to the applicants' parents. They contained indications on the possibility of appeal but none of the applicants had availed themselves of that right. The applicants had also been informed by the school authorities of the possibilities of transfer from a special school to a primary school. It appeared that four of the children had passed the proficiency tests and were now attending ordinary schools. In 1999 some of the applicants applied to the appropriate Education Department, outside the appeal procedure, for review of the administrative decisions on their placement in special schools. The Department replied that the applicants had failed to meet the conditions for bringing proceedings outside the appeal procedure, the impugned placements having been decided in accordance with the statutory rules. In addition, some of the applicants lodged a constitutional complaint in which they argued, in particular, under Articles 3 and 14 of the Convention and Article 2 of Protocol No. 1, that they had been subjected to de facto segregation through the general operation of the special education system and that they had not been sufficiently informed of the consequences of their placement in special schools. The Constitutional Court dismissed the applicants' complaint. It found that it lacked jurisdiction to rule on the claims of some of the applicants and dismissed those of the other applicants as being manifestly ill-founded, noting that they had not produced concrete evidence in support of their allegations, that they had not exercised their right of appeal and that their representatives had not made the effort to apprise themselves of the consequences of placement in special schools.

Law: Government's preliminary objection (non-exhaustion) – As in its decision on the admissibility of