Legal summary
December 2022
Elmazova and Others v. North Macedonia - 11811/20 and 13550/20
Judgment 13.12.2022 [Section II]
Article 14
Discrimination
Discrimination of Roma pupils on account of their segregation in two State-run primary schools attended predominantly by Roma children and with Roma-only classes respectively: violation
Article 46
Article 46-2
Execution of judgment
Individual measures
Respondent State required to take individual measures to end the segregation of Roma pupils in two State-run primary schools
Facts – The eighty-three applicants – parents and their children – are Macedonians of Roma origin. The children attended two State-run primary schools, G.S. and G.D., in the municipalities of Bitola and Shtip respectively. G.S, is located 600 metres from T.A., another State-run primary school belonging to the same catchment area as defined by a decision of the municipality. Each residential district had a designated State-funded primary school which was obliged to admit children who resided in its catchment area, but parents were free to request that their children be admitted to another public school of their choice, in that or another area, for which consent by the admitting school was required. The applicants allege that Roma children from their district, Bair, were enrolled in G.S., unlike pupils of Macedonian ethnic origin from the same or the neighbouring catchment area, who were enrolled in T.A.. That school allowed transfers from G.S. of pupils of Macedonian ethnic origin but not of Roma pupils. They claimed that the implementation in practice of the municipality’s decision had resulted in the segregation of Roma in G.S. in the 2018/19 academic year. Concerning G.D., in the 2017/2018 and 2018/2019 academic years, there were three first-grade classes, of which two were mixed and one was Roma-only.
Fifty-two of the applicants unsuccessfully lodged complaints before the Constitutional Court under Rule 51 of the Rules of Procedure of that court alleging discriminatory practice and segregation in the enjoyment of their right to education in respect of the two schools.
Subsequently, the European Roma Rights Centre lodged a complaint with the national Commission for the Prevention and Protection against discrimination regarding the segregation of Roma pupils in both schools for the 2021/2022 academic year. The Commission issued an opinion finding indirect discrimination on account of ethnic segregation to be a systemic problem in the educational process stemming from the Primary Education Act. It also issued a general recommendation that the relevant national and local authorities and the administration of the schools concerned should ensure a stricter and more consistent application of the decisions on catchment areas that would reduce Roma segregation. The implementation of the recommendation was still ongoing.
Law – Article 14 taken in conjunction with Article 2 of Protocol No.1:
(a) Non-exhaustion of domestic remedies and compliance with the six-month rule – In so far as the Government had argued that it would have been more appropriate if the applicants had brought proceedings for constitutional review of the relevant legislation under Rule 12 of the Constitutional Court’s Rules of Procedure, the Court found that such an application would not have been more appropriate for their complaints and their failure to avail themselves of that remedy had not been tantamount to non‑exhaustion.
In particular, the Constitutional Court had had full jurisdiction under the Constitution to deal with alleged violations of the rights and freedoms under Article 14. Any physical person could seek a constitutional review of a legal instrument and such an application could enable those directly affected to vindicate individual rights and freedoms stemming from the legislation that the Constitutional Court declared unconstitutional or unlawful. However, the applicants had argued that their grievances had not been a result of the legislation, as such, but of the manner in which it had been implemented in practice. Furthermore, the Constitutional Court had already found that section 50 (in part) of the Primary Education Act, which had served as a legal basis for the transfer of pupils between the schools, was in compliance with the Constitution. There was nothing to suggest that the Constitutional Court would have decided differently if the applicants had sought a fresh constitutional review of that provision. It had not been argued that the relevant decisions regarding the schools’ catchment area contained rules other than those provided for in the relevant laws or were otherwise clearly unconstitutional or unlawful, which would have rendered constitutional review likely to be successful.
In so far as the Government had argued that the applicants should have used the civil avenue of redress under the Discrimination Act, that remedy could also lead to a finding of discrimination but did not add anything beyond what the constitutional complaint offered in respect of the applicants’ complaints. Although, the Government’s suggested approach that the civil action should have been used prior to the constitutional complaint could not be regarded, in principle, unreasonable in view of the machinery within which the domestic legal remedies operated and the superior position of the Constitutional Court in the judiciary of the respondent State, the Court did not consider that it could apply in the circumstances of the present case bearing in mind the domestic case-law at the time. It would have been unduly formalistic to require the applicants to exercise a remedy which the Constitutional Court had not obliged them to use. Accordingly, the applicants who had pursued the constitutional avenue of redress had done what had been reasonably expected of them and thus had complied with the requirements of Article 35 § 1 of the Convention. There had been no reason to believe that the Constitutional Court would have decided differently if the remaining applicants had also applied to the Constitutional Court under Rule 51. Thus, given the circumstances of the case and the nature of the complaints pertaining to an alleged practice of Roma segregation in the schools in question, the fact that some applicants had not used that remedy could not be regarded as a failure on their part to exhaust the domestic remedies.
Conclusion: preliminary objection dismissed (unanimously).
(b) Merits – Firstly, there was no doubt that G.S. had been a school predominantly attended by Roma children representing 83.5% of the pupils during the academic year 2018/2019. The ethnic Macedonian pupils in each grade had been mainly placed together in one class. In contrast, T.A. had been almost exclusively attended by ethnic Macedonians representing 95.1% of the pupils. Although the Constitutional Court had held that segregation had not been established, it had concluded, on the basis of the figures before it, that “the children in the Bair district attend[ed] two ethnically divided schools”. The National Ombudsman had also noted that there had been a large disproportion between Roma and non-Roma placements in G.S. in the preceding academic years, upholding the applicants’ arguments that the main reason for that had been the manner in which the regulatory framework on admission and transfer of pupils had been applied in practice, owing to the opposition of non-Roma parents to enrolling their children in G.S.. The ethnic structure of residents within the catchment area could not, in the circumstances, be sufficient to objectively justify the segregation of Roma in G.S. The ethnic composition of pupils in T.A. had been totally different from G.S., notwithstanding their close proximity and that they belonged to the same catchment area. The applicants could not be held responsible for the situation complained of because of their failure to seek a transfer to other schools. Firstly, their choice to enrol in G.S., as the school of their compulsory admission, had been in compliance with the principal rule on enrolment of pupils under the Primary Education Act. Secondly, and more importantly, it had been primarily for the State to take positive effective measures to correct the applicants’ factual inequality and avoid the perpetuation of the discrimination that had resulted from their over-representation in G.S., thereby breaking the circle of marginalisation and allowing them to live as equal citizens from the early stages of their life. Such measures, however, had not been taken despite the repeated recommendations by the Ombudsman. The situation complained of had continued in the following years and had indeed worsened in 2021/2022 when the first-grade pupils enrolled in G.S. were exclusively Roma.
Secondly, regarding G.D., in the 2017/2018 academic year, Roma pupils had accounted for 64% of all first-grade pupils and in the 2018/2019 year they had accounted for 67%. In each of those years, there had been three first-grade classes, of which two had been mixed and one Roma-only. Accordingly, it could not be said that it had been a general policy to automatically place Roma pupils in separate classes in the school at issue. The above figures had partly been a result of the fact that a large Roma community resided in the catchment area to which G.D. belonged. However, as established by the Constitutional Court, there had been a significant departure of pupils of Macedonian ethnic origin belonging to G.D.’s catchment area. The Government had not disproved that such a practice had been due to the refusal of parents of non-Roma pupils to enrol their children in G.D. because of the large presence of Roma pupils, which, as noted by the Ombudsman, had been the main reason for the situation complained of in the previous academic years. Furthermore, the uneven distribution of first-grade pupils in the 2017/2018 academic year in mixed (31 and 32 pupils in the two classes) and Roma-only (18 pupils) classes was noteworthy, the latter class having fewer pupils than the minimum 24-pupil threshold set by law. The school had acknowledged the existence of segregation and had taken certain measures to tackle the problem. However, all its attempts and suggestions, including the redistribution of pupils in the classes, had not materialised mainly because of the opposition shown by the parents of non-Roma children, with the situation complained of continuing at present.
In view of the foregoing, and even in the absence of any discriminatory intent on the part of the State, the Court considered that the segregation of Roma children in G.S. and G.D. during the period under consideration could not be considered as objectively and reasonably justified by a legitimate aim.
Conclusion: violation (unanimously).
Article 46: The coexistence of members of society free from racial segregation was a fundamental value of democratic societies and inclusive education was the most appropriate means of guaranteeing the fundamental principles of universality and non‑discrimination in the exercise of the right to education. Having regard to these principles, the respondent State in the present case had to take measures to ensure the end of the segregation of Roma pupils in G.S. and G.D., as recommended by the European Commission against Racism and Intolerance, the national Commission for Prevention and Protection against Discrimination, and the Ombudsman.
Article 41: EUR 1,200 per applicants’ household (parents and their minor children) in respect of non-pecuniary damage.
(See also D.H. and Others v. the Czech Republic [GC], 57325/00, 13 November 2007, Legal Summary; Oršuš and Others v. Croatia [GC], 15766/03, 16 March 2010, Legal Summary; Lavida and Others v. Greece, 7973/10, 30 May 2013; X and Others v. Albania, 73548/17 and 45521/19, 31 May 2022, Legal Summary)
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This summary by the Registry does not bind the Court.
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