Information Note on the Court’s case-law 110
July 2008
Oršuš and Others v. Croatia - 15766/03
Judgment 17.7.2008 [Section I]
Article 14
Discrimination
Placement of Roma children in Roma-only classes owing to their poor command of the Croatian language: no violation
Article 2 of Protocol No. 1
Right to education
Placement of Roma children in Roma-only classes owing to their poor command of the Croatian language: no violation
[This case was referred to the Grand Chamber on 1 December 2008]
Facts: The applicants are fourteen Croatian nationals of Roma origin who started primary school in three village schools in the Međimurje County between 1996 and 2000. During their elementary schooling, the first nine applicants attended both Roma-only and mixed classes before leaving school at the age of 15. The remaining five applicants are still at school and attend entirely Roma-only classes. Most of the applicants were provided with additional classes in Croatian and participated in mixed group extra-curricular activities organised by their respective schools. In April 2002 the applicants brought proceedings against their primary schools. They claimed that the Roma-only curriculum in their schools had 30% less content than the official national curriculum. They alleged that that situation was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment. They also submitted a psychological study of Roma children who attended Roma-only classes in their region which reported that segregated education produced emotional and psychological harm in Roma children, both in terms of self-esteem and development of their identity. In September 2002 a municipal court dismissed the applicants’ complaint. It found that the reason why most Roma pupils were placed in separate classes was that they needed extra tuition in Croatian. Furthermore, the curriculum at two of those schools was the same as that used in parallel classes in those schools. Consequently, the applicants had failed to substantiate their allegations concerning racial discrimination. The applicants’ complaint was subsequently also dismissed on appeal. The applicants’ constitutional complaint, lodged in November 2003, was dismissed on similar grounds in February 2007. The Government submitted statistics for the year 2001 which showed that only one of the schools had a majority of Roma pupils attending Roma-only classes, whereas the other two schools’ proportion of Roma pupils attending such classes was below 50%. This proved that it was not a general policy in the schools to automatically place Roma pupils in separate classes. The applicants claimed, however, that they were told to leave school at 15 and that the discrimination they suffered was borne out by certain statistics, for example, in the school year 2006/2007, the drop-out rate of Roma pupils at primary school was 84%, in comparison to a 9% drop-out rate with regard to the general elementary school population in their county.
Law: Article 2 of Protocol No. 1 – The Court firstly noted that the applicants’ education had not been of lower quality than that of other pupils attending the same schools. It had been established in the domestic proceedings that the Roma-only curriculum in the schools attended by the applicants had been no different. Nor had the applicants given sufficient evidence in their submissions to the Court to support their claim that the Roma-only curriculum had up to 30% less content. Furthermore, transferring pupils from a Roma-only to a mixed class had been a regular practice in those schools, as illustrated by the case of the first nine applicants. The remaining applicants had never asked to be transferred to a mixed class, or objected to their placement in a Roma-only class. The last five applicants were still attending lower grades of elementary school, where the question of transfer to a mixed class would be premature in view of the reasons for their initial placement in a Roma-only class, namely their insufficient command of the Croatian language. Moreover, the applicants’ parents had not been deprived or even complained that they had been deprived of their rights under Article 2 of Protocol No. 1. Accordingly, the applicants had not been deprived of their right to attend school and receive an education and the education they had been provided with had been adequate and sufficient.
Conclusion: no violation (unanimously).
Article 14 in conjunction with Article 2 of Protocol No. 1 – The Court observed that any difference in treatment of the applicants had been based on their language skills. Indeed, the applicants had never contested the fact that, at the time of their enrolment in elementary school, they had not had a sufficient command of the Croatian language to follow lessons. The Government also submitted that language tests had shown that a majority of Roma children in the communities at issue had lacked adequate knowledge of the Croatian language. The Court accepted that that problem had to be addressed by the relevant State authorities. In any event, the placing of Roma children in separate classes in Croatia was a method used in only four elementary schools in one particular region, owing to the high representation of Roma pupils there. The statistics submitted by the Government further proved that it had not been a general policy in those schools to automatically place Roma pupils in separate classes. The Court reiterated that in the sphere of education States could not be prohibited from setting up separate classes or different types of school for children with difficulties, or implementing special educational programmes to respond to special needs. It was in fact satisfying that the authorities had addressed that sensitive and important issue. The placement of the applicants in separate classes had therefore been a positive measure designed to assist them in acquiring the knowledge necessary for them to follow the school curriculum. The initial placement of the applicants in separate classes had thus been based on their insufficient knowledge of the Croatian language and not on their race or ethnic origin.
Conclusion: no violation (unanimously).
Lastly, the Court found that the length of the proceedings before the Constitutional Court (more than four years) had been excessive, in violation of Article 6 § 1.
Article 41 – EUR 2,000 in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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