Information Note on the Court’s case-law No. 128
March 2010
Oršuš and Others v. Croatia [GC] - 15766/03
Judgment 16.3.2010 [GC]
Article 14
Discrimination
Placement of Roma children in Roma-only classes owing to their allegedly poor command of the Croatian language: violation
Facts – The applicants were fifteen Croatian nationals of Roma origin who attended two primary schools between 1996 and 2000. At times they attended Roma-only classes. In April 2002 they brought proceedings against the schools alleging, inter alia, racial discrimination and a violation of their right to education, in that the Roma-only curriculum was significantly reduced in volume and content compared to the official national curriculum. They also submitted a psychological study 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 their complaint after finding that the reason why most Roma pupils were placed in separate classes was that they needed extra tuition in Croatian and that the applicants had failed to substantiate their allegations concerning racial discrimination and the reduced curriculum. That decision was upheld on appeal.
Law – Article 14 in conjunction with Article 2 of Protocol No. 1: The Government had maintained that the applicants had only been put in separate classes on account of their inadequate command of the Croatian language. The Court therefore had to examine whether the school authorities had taken all necessary steps to ensure the applicants’ speedy progress in learning the language and their subsequent integration in mixed classes. In this connection, it observed that the temporary placement of children in a separate class on the grounds that they lacked adequate command of the language of instruction was not automatically contrary to Article 14. However, when such measures disproportionately affected members of a specific ethnic group, effective safeguards needed to be put in place at each stage of its implementation. The Court firstly observed that there had been no clear legal basis for placing children lacking adequate command of the Croatian language in separate classes. Moreover, the Government had not shown that such practice had been applied in respect of any other pupils with insufficient knowledge of Croatian in any other part of the country. Such practice could therefore hardly have been regarded as common or general practice designed to address the problems of children who lacked adequate command of the language of instruction. As regards the curriculum provided in Roma-only classes, the Government contended that it was the same as in all other classes of the same grade and that, in any event, the curriculum in any single class may have been reduced by up to 30%. However, instead of simply reducing the curriculum in Roma-only classes, in the Court’s view, the State was called upon to adopt appropriate positive measures with a view to assisting the applicants in acquiring the necessary language skills in the shortest time possible, notably by means of special language lessons. Such lessons had indeed been provided to some of the applicants at some stage of their primary schooling, but for instance three of the applicants had never been provided with such classes, and a further six had been offered such classes only in the third grade, although they had been attending Roma-only classes since the first grade. The Court further noted that there was no established programme for addressing the special needs of Roma children with insufficient command of Croatian that would include a time-frame for the various phases of their acquisition of the necessary language skills. In addition, the Court considered that the high drop-out rate of Roma pupils in the area where the applicants had studied called for the implementation of further positive measures and the active involvement of social services in order to raise awareness of the importance of education among the Roma population. Even though the present case differed from D.H. and Others v. the Czech Republic ([GC], no. 57325/00, 13 November 2007, Information Note no. 102) in that it had not been a general policy in both schools to automatically place Roma pupils in separate classes, it was common ground that a number of European States encountered serious difficulties in providing adequate schooling for Roma children. Despite the very positive actions taken by the respondent State following the period in question, the facts of the applicants’ case nevertheless indicated that their schooling arrangements were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had had sufficient regard to their special needs as members of a disadvantaged group. As a result, the applicants had been placed in separate classes where an adapted curriculum was followed, without clear or transparent criteria as regards their transfer to mixed classes.
Conclusion: violation (nine votes to eight).
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 4,500 to each of the applicants in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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