THIRD SECTION
DECISION
Application no. 49516/17
Mariglen AVDIU and Others
against Albania
The European Court of Human Rights (Third Section), sitting on 23 May 2023 as a Committee composed of:
Georgios A. Serghides, President,
Darian Pavli,
Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 49516/17) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 July 2017 by the applicants listed in the appended table (“the applicants”) who were represented before the Court by the European Roma Rights Centre (“ERRC”), a non-governmental organisation based in Brussels, Belgium and Qendra për Nisma Ligjore Qytetare, a non-governmental organisation based in Tirana;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged discrimination against the applicants as a result of the Government’s failure to implement desegregation measures in an elementary school, which was attended exclusively by children of the Roma minority.
2. The applicants are 15 households of Roma origin living in Moravë, Berat, a village in Albania, where Roma make up about one-third of the population.
3. When the application was submitted, the children were attending or were expected to attend Avdyl Avdya school, an elementary school built in 2002. The school provided compulsory primary education in grouped classes. The number of children at this school varied from 23 to 29 and they were only Roma pupils. A few non-Roma families that live in the neighbourhood sent their children to other schools.
4. The pupils from Avdyl Avdya school could finish their compulsory studies in the Shaban Sollaku school and both schools were in the same administrative unit. In the years preceding the present application, only five to six pupils from Avdyl Avdya school had continued their studies to Shaban Sollaku school. According to the applicants that was due to the poor quality of education they received in Avdyl Avdya school.
5. Upon a complaint filed on 17 June 2015 by the ERRC, on 16 July 2015 the Regional Educational Department of Berat (the Educational Department) acknowledged the existence of segregation of Roma pupils in the Avdyl Avdya school and the need to put an end to it. However, it asserted that free transport of the children to Shaban Sollaku school was not possible, because the minimum distance for providing free transport of pupils to a school had not been satisfied.
6. Upon a further complaint filed on 3 September 2015 by the ERRC, the Albanian Commissioner for Protection from Discrimination (the Commissioner) on 16 December 2015 adopted a decision establishing that the applicants had been discriminated against by the Ministry and the Education Department, on the basis of their race, in the field of education. The Commissioner ordered the implementation of the necessary steps, including the closure of the school and free transport for Roma children to an integrated school.
7. On 10 April 2018 the applicants informed the Court that the applicant pupils had started to attend Shaban Sollaku school. On 27 March 2023 the applicants further informed the Court that the Ministry had approved the Avdyl Avdya school’s closure. The applicant pupils had continued to attend the integrated school, their schooling had continued regularly, and they had been welcomed at the new school. Transport had been arranged by public authorities and the parents were reimbursed the transportation expenses, initially by third parties and afterwards by the Berat Municipality. The applicants did not submit any claim with domestic courts maintaining that there were no effective remedies in their case.
Relevant domestic law
8. The relevant provision of the Albanian Anti-Discrimination Act, Law no. 10221 of 4 February 2010, reads as follows:
Section 1
“This law regulates the implementation of and compliance with the principle of equality in relation to race, ethnicity (...)”
Section 34
“1. Every person or group of persons who claim that they have been discriminated against on one of the grounds under section 1 of this law may lodge a claim with the competent court (...) for compensation of damages (...).
2. Lodging a complaint before the Commissioner is not a condition for submitting a claim (...).”
THE COURT’S ASSESSMENT
9. The applicants complained under Article 1 of Protocol No. 12 to the Convention that they were discriminated against in their right to an inclusive education as a result of the authorities’ failure to implement desegregating measures to address the over-representation of Roma pupils in the Avdyl Avdya school. They asserted that this placement resulted in depriving the applicant pupils of a genuine education.
10. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive the applicant of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Murray v. the Netherlands [GC], no. 10511/10, § 83, 26 April 2016, and Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012). This acknowledgement and redress are typically to be obtained through exhaustion of any domestic remedies (see Staykov v. Bulgaria, no. 49438/99, § 89, 12 October 2006, and C and D v. Croatia (dec.), no. 43317/07, 14 October 2010).
11. In the case X and Others v. Albania (nos. 73548/17 and 45521/19, § 63, 31 May 2022), the Court has emphasised that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see A.H. and Others v. Russia, nos. 6033/13 and 15 others, § 347, 17 January 2017). In that case the crux of the applicants’ complaints concerned the authorities’ failure to put an end to an ongoing situation, namely the segregation of Roma/Egyptian pupils in a school. Accordingly, the Court held that the remedy that offered the prospect of financial compensation alone, without preventing the continuation of the alleged violation, could not be considered effective (see, mutatis mutandis, Patranin v. Russia, no. 12983/14, § 86, 23 July 2015).
12. However, the situation of the applicants in the present case differs, not only because the authorities acknowledged that the applicants had been discriminated against, but they also remedied that situation. In that connection the Court notes that in the above-mentioned decision of 15 December 2015, the Commissioner established that the Ministry and the Educational Department had discriminated against Roma pupils in the field of education, including the applicants, on the basis of their race, because of their segregation in the Avdyl Avdya school. Given these findings, the Court considers that the national authorities expressly acknowledged a violation of the applicants’ right not to be discriminated against.
13. Further to this, the applicants informed the Court that the national authorities had taken several steps to address their complaints. The Avdyl Avdya school was officially closed in 2018. Since the second semester of the school year 2017/2018 the Berat Municipality had provided transport for the children to the new school and the reimbursement of the transportation costs to the families concerned. The applicants stated that the quality of education at the new school was adequate.
14. In the Court’s view the relevant authorities have complied with their positive obligation to take steps to correct the applicants’ alleged inequality and avoid their segregation at the Avdyl Avdya school.
15. The next issue to be assessed is whether the applicants received adequate compensation for the acknowledged violation of their right not to be discriminated against. In that connection the Court reiterates that the obligation to exhaust domestic remedies requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see, for example, Gherghina v. Romania [GC] (dec.), no. 42219/07, § 84, 9 July 2015).
16. The final decision of the Commissioner, acknowledging expressly the discrimination of the applicant pupils, gave the applicants a reasonable possibility of obtaining redress under Section 34 of the Anti-Discrimination Act (Law no. 10221 of 4 February 2010), which provides that anyone who has been discriminated against has the right to seek compensation of damages before a competent court, irrespective of whether he or she has filed a complaint with the Commissioner. However, the applicants have not sought compensation in a civil action against the State. While the institution of civil proceedings for damages in itself cannot fully remedy an ongoing infringement of the right to not to be discriminated against, such proceedings in combination with the Commissioner’s acknowledgment of a violation of their right not to be discriminated against, and the positive measures to address the discrimination, satisfy the requirements of effectiveness. It follows that when the Commissioner established that the applicants’ right not to be discriminated against had been violated, the applicants had to pursue the remedies for obtaining redress for that past breach. The applicants have failed to do so.
17. Accordingly, in so far as the applicants’ complaint concerns the period prior to April 2018, it must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
18. As regards the applicants’ claim for the period after April 2018, the Court has already assessed that the authorities have taken adequate measures to put an end to the situation the applicants complained of (see paragraph 16 above). The applicants have not put forward any arguments or information that would indicate otherwise. It follows that by desegregating the applicant pupils’ schooling and providing them with means of transport to a non‑segregated school in which the level of education was adequate, the national authorities have remedied the applicants’ situation and that therefore, the applicants may no longer claim to be the victims of the violation claimed.
19. Accordingly, in so far as the applicants’ complaint concerns the period since April 2018, it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must therefore be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 June 2023.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President
Appendix
List of applicants
No.
Applicant’s Name
Year of birth/registration
Nationality
Place of residence
1.
Mariglen AVDIU
1998
Albanian
Berat
2.
Elio AVDIU
2013
Albanian
Berat
3.
Endri AVDIU
2004
Albanian
Berat
4.
Ermal AVDIU
1984
Albanian
Berat
5.
Eva AVDIU
2009
Albanian
Berat
6.
Flori AVDIU
2004
Albanian
Berat
7.
Iljaz AVDIU
1973
Albanian
Berat
8.
Leonard AVDIU
1987
Albanian
Berat
9.
Nadia AVDIU
2012
Albanian
Berat
10.
Paloma AVDIU
2009
Albanian
Berat
11.
Senada AVDIU
2007
Albanian
Berat
12.
Juliana MILE
2008
Albanian
Berat
13.
Klodjan MILE
1976
Albanian
Berat
14.
Nurie MILE
1975
Albanian
Berat
15.
Xhensia MILE
2004
Albanian
Berat
16.
Adelaide MYRTELI
2009
Albanian
Berat
17.
Adelajda MYRTELI
2009
Albanian
Berat
18.
Aleksandros MYRTELI
2008
Albanian
Berat
19.
Alex MYRTELI
2003
Albanian
Berat
20.
Alexandro MYRTELI
2008
Albanian
Berat
21.
Angelo MYRTELI
2008
Albanian
Berat
22.
Antonela MYRTELI
2014
Albanian
Berat
23.
Arjola MYRTELI
2003
Albanian
Berat
24.
Elton MYRTELI
1986
Albanian
Berat
25.
Ermal MYRTELI
1988
Albanian
Berat
26.
Gabriel MYRTELI
2011
Albanian
Berat
27.
Iljada MYRTELI
2005
Albanian
Berat
28.
Jolanda MYRTELI
1988
Albanian
Berat
29.
Kristo MYRTELI
2007
Albanian
Berat
30.
Laura MYRTELI
2008
Albanian
Berat
31.
Laureta MYRTELI
1982
Albanian
Berat
32.
Liverin MYRTELI
2016
Albanian
Berat
33.
Sentiljan MYRTELI
1986
Albanian
Berat
34.
Valter MYRTELI
1983
Albanian
Berat
35.
Vullnet MYRTELI
1968
Albanian
Berat
36.
Dallandyshe TIFI
1982
Albanian
Berat
37.
Danjel TIFI
2005
Albanian
Berat
38.
Manuel TIFI
2005
Albanian
Berat
39.
Elona YZEIRI
1984
Albanian
Berat
40.
Klaus YZEIRI
2004
Albanian
Berat
41.
Martino YZEIRI
2009
Albanian
Berat
42.
Vionis YZEIRI
2006
Albanian
Berat