D.H. and Others v. the Czech Republic

Avrupa İnsan Hakları Mahkemesi

Karar Metni

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 this case, the Court considered that the parties' arguments in this connection raised questions that were closely linked to the merits of the case, and that the application was one of considerable importance and had serious implications. Accordingly, and since the application resulted in a finding that there had been no violation, the Court considered it unnecessary to examine whether the applicants had satisfied the condition of non-exhaustion of domestic remedies.

Article 14 taken in conjunction with Article 2 of Protocol No. 1 – The applicants' complaint under these provisions was based on a certain number of serious arguments, and several organisations had expressed their concern about the arrangements whereby Roma children living in the Czech Republic were placed in special schools and about the difficulties they had in gaining access to ordinary schools. However, it was not for the Court to assess the overall social context; its task in the present case was specifically to examine the individual applications before it and to determine, on the basis of the relevant facts, whether the reason for the applicants' placement in special schools had been their ethnic or racial origin. In this connection, if a policy or general measure had disproportionate prejudicial effects on a group of individuals, the possibility of their being discriminatory could not be ruled out, notwithstanding the fact that they had not been specifically directed against such a group. However, the statistics did not suffice in themselves to indicate the existence of a practice that might be characterised as discriminatory; moreover, the setting and planning of the school curriculum fell in principle within the remit of the Contracting State. With regard to those children who had specific needs, the choice between different possible systems involved the difficult exercise of balancing the various interests concerned. It was reiterated that, given States' margin of appreciation in matters of education, they could not be prohibited from setting up different types of school for children with difficulties or implementing special educational programmes to respond to specific needs. In this case, the Court found that the Government had adequately proved that the special schools system in the Czech Republic was not intended only for Roma children and that great efforts had been made in such schools to help certain categories of pupil to acquire elementary knowledge. It appeared that the rules governing children's placement in special schools did not refer to the pupils' ethnic origin, but pursued the legitimate aim of adapting the education system to the needs and aptitudes or disabilities of the children. Moreover, it was not in dispute that the tests had in this case been set by specialists in the relevant field, and the applicants' representatives had not succeeded in refuting the experts' findings that the children had been prevented by their learning disabilities from following the ordinary primary school curriculum. It also needed to be borne in mind that, in their capacity as the applicants' lawful representatives, the applicants' parents had failed to take any action, despite having received a clear written decision informing them of their children's placement in a special school; indeed, in some instances it had been the parents who had asked for their children to be placed or to remain in a special school. Furthermore, the fact that some of the applicants had subsequently been transferred to ordinary schools proved that the situation was not irreversible. As to the applicants' argument that the parental consent had not been “informed” and in two cases had apparently been pre-dated, it was the parents' responsibility, as part of their natural duty to ensure that their children received an education, to find out about the educational opportunities offered by the State, to make sure they knew the date on which they had given their consent to their children's placement in a particular school and, if necessary, to make an appropriate challenge to the decision ordering the placement if it had been issued without their consent. Thus, while acknowledging that the statistics disclosed figures that were worrying and that the overall situation in the Czech Republic concerning the education of Roma children was by no means perfect, the Court could not in the circumstances conclude that the applicants' placement or, in some instances, continued placement, in special schools had been the result of racial prejudice as alleged by the applicants.

Conclusion: no violation (six votes to one).

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