Published on 9 October 2023
FIRST SECTION
Application no. 29359/22
Adrián SALAY
against Slovakia
lodged on 4 June 2022
communicated on 18 September 2023
SUBJECT MATTER OF THE CASE
The application concerns the allegedly discriminatory enrolment and schooling of the applicant, having been born in 1998 and being of Roma origin, in special classes for children who are not expected to be able to complete the ordinary curriculum.
In particular, once the applicant reached the age of mandatory school attendance, following a recommendation by a psychologist who had established limitations in his maturity, in the academic year 2004/2005 the applicant was enrolled in a preparatory class, known as the zero-grade (nultý ročník under section 6(2) of the School Act (Law no. 29/1984 Coll., as applicable at the material time)), instead of the ordinary first grade. This class consisted of Romani and non‑Romani children.
Thereafter, in the academic year 2005/2006, the applicant commenced attending the first grade in an ordinary class. In the course of the year, in response to learning difficulties, he was examined by a psychologist and diagnosed with mild mental retardation, following which he was recommended for a transfer to one of the special classes (špeciálna trieda under section 32a(3) of the 1984 School Act and, subsequently, špecializovaná trieda under section 29(14) of the 2008 School Act (Law no. 245/2008 Coll., as amended)) established at his school for children with disabilities. A request for his transfer was ultimately signed by his mother.
Since the second grade (the academic year 2006/2007) until the end of his mandatory school attendance age, the applicant received education in a special class, such classes at his school being attended solely by Roma pupils.
The applicant was re-tested in 2009 and 2011 with differing results, which however did not lead to his transfer to an ordinary class despite his parents’ request to that effect, the ultimate recommendation being that he remain in a special class but be assigned additional individual tasks to enable his enrolment in a secondary school.
The applicant then pursued his rights by way of an antidiscrimination action against the school and the State, in the person of the Ministry of Education, contending that his enrolment and schooling in the special class, preceded by the preparatory class, had been arbitrary. In general, there had been overrepresentation and segregation of Roma pupils in that type of education. In particular, the results of his tests had been incoherent and had relied on learning difficulties that had not been individually specified. Moreover, the tests were culturally, socially and linguistically biased. The consent of his parents for his enrolment in the special class had not been informed and there had been no regular retesting. The physical equipment of and the curriculum pursued in such classes was inferior to ordinary classes.
The action was dismissed, the courts concluding that no limitations had been established as regards the applicant’s linguistic understanding. As the school in question had been attended exclusively by Roma children, the fact that only such children attended the special classes was not indicative of any segregation. The testing for the enrolment in such classes was uniform irrespective of the origin of the tested children. Moreover, the applicant was a complicated personality with behaviour problems which of itself would have prevented his enrolment in ordinary classes. In sum, the applicant had failed to show any difference in treatment on the grounds of his origin and, accordingly, there was no question as to whether any such difference was justified. The final decision was given by the Constitutional Court on 12 November 2021(III. ÚS 633/2021).
As before the domestic courts, the applicant relies on the criticism of Roma overrepresentation and segregation in education expressed by various international bodies. This includes concluding observations of the United Nations (“the UN”) Committee on the Elimination of Racial Discrimination (CERD/C/SVK/CO/11-12, 12 January 2018), the UN Human Rights Council (CCPR/C/SVK/CO/4, 22 November 2016) and the UN Committee on the Rights of the Child (CRC/C/SVK/CO/3-5, 20 July 2016). Moreover, on 19 April 2023 the European Commission, relying on the EU rules on racial equality (Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin), referred Slovakia to the Court of Justice of the European Union for failing to effectively tackle the issue of segregation of Roma children in education.
The applicant alleges a violation of his rights under Article 2 of Protocol No. 1 and Article 14 of the Convention on account of his enrolment in the preparatory class and the special class, in connection with what he argues has been overrepresentation of Romani pupils in such classes, biased testing, lack of re-testing, absence of positive action to undo the history of discrimination in this area, and arbitrary dismissal of his action.
QUESTIONS TO THE PARTIES
1. Has the applicant suffered discrimination on the grounds of his Roma origin, contrary to Article 14 of the Convention, taken in conjunction with Article 2 of Protocol No. 1 (see, for example, D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 175-181, ECHR 2007 IV and Sampani and Others v. Greece, no. 59608/09, §§ 75-76, 78, 11 December 2012)?
2. In particular, has he been subjected to a difference in treatment in respect of the enjoyment of his right to education free of discrimination?
Having regard to all the circumstances, including but not limited to the case-law of the domestic courts (see, for example, judgments of the Supreme Court of 15 December 2022 (case no. 5Cdo/102/2020) and the Prešov Regional Court of 28 February 2023 (case no. 20Co/21/2022)), has the applicant produced prima facie evidence that the manner in which the respective legislation was applied in practice resulted in a disproportionate number of Roma children – including the applicant – being placed in special classes without justification and that it placed such children at a significant disadvantage (see D.H. and Others, cited above, §§ 185, 188, 189-195)?
3. If the applicant was subjected to such a difference in treatment, did it have an objective and reasonable justification, taking into account inter alia aspects of the testing and parental consent (ibid. §§ 189, 196 and 199-203)?