CM/Inf/DH(2010)47 24 November 20101
Supervision of the execution of the judgments in the case of D.H. and others against Czech Republic, judgment of 13/11/2007 - Grand Chamber
Document prepared by the Department for the Execution of Judgments of the European Court of Human Rights (DG-HL)
I. Violations found by the European Court:
1. The case concerns discrimination against Roma children in that their placement in special schools intended for children with mental disabilities lacked objective and reasonable justification. The European Court found a violation of Article 14, prohibition of discrimination, in conjunction with Article 2 Protocol No. 1, right to education.
2. The Court concluded that on the basis of statistics submitted by independent monitoring bodies and NGOs, there was a strong presumption of indirect discrimination against Roma pupils and that the burden of proof therefore shifts to the national authorities to show that the difference in treatment “was the result of objective factors unrelated to ethnic origin2”.
3. Where there is a presumption of indirect discrimination, measures which result in differing treatment must be objectively and reasonably justified. In determining whether the respondent State has provided reasonable and objective justification for any such measures the Court considers the provision of safeguards as especially material. In particular, the Court identifies safeguards in two areas; safeguards in relation to schooling arrangements for Roma children and procedural safeguards.
b)i) Safeguards in relation to schooling arrangements
4. The European Court identifies the following safeguards as key in relation to schooling arrangements:
b)i)a) to ensure that the goal of any separated education is ultimately inclusion in the mainstream education system;3
b)i)b) if tests are applied to assess the academic suitability of Roma students for mainstream education to ensure that these identify clear criteria unrelated to ethnic origin and meet a legitimate, educational need;4
b)i)c) where parental consent to placement in separate classes is sought, such consent should be fully informed. However, there can be no waiver of the right not to be subject to racial discrimination5
b)ii) Procedural safeguards
b)ii)a) Procedural safeguards available to the individual in this context are especially material6.
II. Status of the Action plan
5. The Czech authorities have made a number of submissions to the Committee of Ministers on the adoption of an overall Action plan and within that plan, specific measures to be adopted in the context of the “National Plan of Inclusive Education” (the NAPIV) to be implemented from 2010-2013. However, recent submissions from civil society (see DH-DD(2010)583 and DH-DD(2010)584) and reports in the Czech media7 state that on resignation, a Ministry of Education official informally announced that the NAPIV had been frozen.
6. Assessment: Information is awaited urgently from the Czech authorities on the current status of the NAPIV. It is of vital importance that comprehensive measures to implement the judgment are taken as soon as possible.
III. Assessment of the Action plan
7. In a response to a submission from a number of NGOs to the Committee of Ministers in December 20098 and again in information submitted in April 20109, the Czech authorities submitted information on statistics which indicate that the number of Roma children educated in “practical schools” for pupils with “mild mental disabilities” has fallen since the date of the judgment but remains significant. It is also noted that these figures are challenged by a number of NGOs and monitoring bodies within the Council of Europe10 whose earlier findings are also referred to in the judgment, on the basis that there has been no real change in the statistics.
8. Assessment: in light of the above, the presence of factors causing the Court to conclude that there was indirect discrimination appear to remain11. It is therefore for the authorities to show that there is an objective and reasonable justification for any difference in treatment of Roma children in the education system, in particular regarding their placement in schools or classes for children with learning difficulties.
b)i) Safeguards in relation to schooling arrangements.
b)i)a) to ensure that the goal of any separated education is ultimately inclusion in the mainstream education system12
9. One of the key objectives of the National Action Plan of Inclusive Education (the “NAPIV”) (and indeed the overall Action Plan submitted in April 2009) is cited as increasing the level of inclusivity in education. In addition, the NAPIV identifies itself as containing the measures that are necessary for bringing the persisting practice of segregation of Roma pupils in the Czech school system to an end and preventing any incidence of discrimination.
10. Assessment: the self-identified objectives of the NAPIV as bringing the persisting practice of segregation of Roma pupils to an end and inclusivity in education, appear to reflect in general terms the safeguards identified by the Court that schooling for Roma pupils should help them to integrate into ordinary schools and develop the skills that would facilitate life amongst the majority population13.
11. In Section 5, the NAPIV states that a proposal for the transformation of current practical primary schools “zakladni skoly prakticke”) into ordinary primary schools will be submitted in late 2010. The plan will be in part achieved by including “pass-through” transitory classes aimed at improving the grades of pupils without learning disabilities but who may need extra learning support. Pupils will not be permitted to remain in classes indefinitely14.
12. Assessment: this aspect of the NAPIV appears to envision a substantive measure for achieving the general safeguard identified by the Court, particularly due to the requirement that students do not remain in transitory classes indefinitely.
b)i)b) If tests are applied to assess the academic suitability of Roma students for mainstream education to ensure that these identify clear criteria unrelated to ethnic origin and meet a legitimate, educational need15
13. The relevant aspect of the NAPIV appears to be “Methodological recommendation on the provision of equal opportunities in education for socially disadvantaged children”16. The recommendation includes specific procedures to eliminate the risk of the distortion of results in the case of socially disadvantaged children, including Roma. The choice of methodologies is further detailed in an earlier submission from the authorities of December 200917.
14. The NAPIV also provides for establishment of separate classes for children with a mental disability in ordinary primary schools. Education in those classes will be on a reduced curriculum based on a confirmed diagnosis of slight mental disability18. The relevant legislation is anticipated as a proposed amendment to Regulation 73/2005 to prohibit the education of children without any mental disability in programmes or schools intended for children with a mental disability.19
15. Assessment: It is noted that in their submission of December 2009, the authorities provided extensive details on the types of tests to be applied and the relevant methodologies cited as “employing standard and valid tools that do not discriminate against this group [if used] in various combinations20”. This approach to testing therefore appears to be a step to ensuring that there is no element of racial discrimination in testing pupils for mental disability. The inclusion in legislation prohibiting placement of children without mental disabilities in programmes for children with mental disabilities also appears significant as it provides a legislative underpinning to ensure that children are placed in schooling genuinely fitted to their educational needs. However, concerns have been raised by the European Commission against Racial Intolerance (ECRI) as to the practical effect of the tests and whether they are socially and culturally neutral21.
b)i)c) Where parental consent to placement in separate classes is sought, such consent should be fully informed. However, there can be no waiver of the right not to be subject to racial discrimination22
16. The NAPIV details the establishment of counselling programmes for parents under Regulation 72/2005 in relation to consent for placement of children in education under programmes for the “mentally disabled”.23
17. The establishment of counselling programmes for parents appears welcome. However, the utility of this measure is linked to the effectiveness of other measures aimed at elimination of unjustified discrimination in the education system.
b)ii) Procedural safeguards
b)ii)a) Procedural safeguards available to the individual in this context are especially material24
18. No information has been provided in relation to the procedural safeguards available to individuals.
c) Other measures:
19. Many other measures are set out in the Action plan (and updates) submitted by the Czech authorities. These include inter alia, an analysis of teaching methods; review of teaching qualifications and teacher training programmes; reform of the curriculum; co-ordination with local government and measures concerning nurseries and pre-schools25.
20. Individual measures: education in the Czech Republic is compulsory for all children from six to fifteen years of age. The applicants are all older than fifteen years of age and no longer in the compulsory schooling system. Consequently, no individual measures are required.
21. Overall Assessment on safeguards in respect of schooling arrangements: the Action plan and more specifically the NAPIV appear to contain a number of positive elements aimed at providing safeguards against discriminatory treatment of Roma pupils in the primary schooling system. However, as these measures have not yet been implemented, they remain to be tested. In addition, the status of the NAPIV and whether it will in fact be adopted has been called into question.
22. The vital importance of comprehensive measures to implement the judgment cannot be overstated. Those affected by the violations identified are children, for whom every school year is vital. If the NAPIV is not to be adopted then alternative measures must be adopted without delay.
23. Given the difficulty in anticipating the impact of the proposed measures (as identified by the Czech authorities themselves26) it is of particular importance that the measures proposed provide robust, effective safeguards against discrimination. In addition, as commented on by the Court, other bodies and civil society, whilst reform on this scale inevitably takes time to implement, any delay has a profound impact on each school year.
24. In relation to the current situation, it has been noted that Roma students currently educated in Practical Schools27 have very few possibilities for transfer into ordinary schooling due to institutionalised segregation in the School system and the fact that the curriculum in Practical schools does not sufficiently prepare pupils for transfer into mainstream schooling.28
25. It therefore appears of crucial importance to ensure that steps are taken to ensure that:-
- there are effective safeguards in the current system in particular to ensure that pupils in Practical schools are able to transfer to the mainstream education system ;
- the measures to establish new safeguards envisaged under the NAPIV (or alternative action plan) are implemented as quickly as possible;
- a clear action plan and timeline for implementation are identified; and
- where the desired results are not achieved, there is a system for speedy and effective identification of any problems and adaptation of the relevant measures.
26. In order to achieve the above, effective monitoring and reporting on the existing situation and the new systems would also appear key.
27. Overall Assessment on procedural safeguards: the European Court noted that such safeguards will be “especially material in determining whether the respondent state has, when fixing the regulatory framework, remained within its margin of appreciation29”. Further information on this aspect is therefore essential for a full picture on the function of existing and planned safeguards.
1 This document has been classified restricted at the date of issue. It was declassified at the 1100th meeting of the Ministers’ Deputies (December 2010) (DH) (see CM/Del/Dec(2010)1100 Decisions adopted at the meeting).
2 §195 of the judgment D.H. v Czech Republic
3 §207 ibid.
4 §201 ibid.
5 §202-204 ibid.
6 §206 ibid.
7 “Czech official quits Education Ministry over failure to address epical schools” ROMEA, 02 11 10; see also iDNEZ.cz of 23.10.10.
8 DD(2009)657E. See paragraph 3 and page 2.
9 See the relevant section of the document “Information about the National Plan of Inclusive Education” DH-DD(2010)584E.
10 §79 of the ECRI report of 2009 CRI(2009)30.
11 See also “The Strasbourg Declaration on Roma” (CM(2010)133 final) § 1.
12 §207 of the judgment D.H. v Czech Republic.
13 § 207 ibid.
14 See Section 5 page 3 of the document submitted by the Czech authorities in April 2010 DH-DD(2010)584E.
15 §201 of the judgment D.H. v Czech Republic.
16 Page 6 of the document submitted by the Czech authorities in April 2010 DH-DD(2010)584E.
17 See DH-DD(2010)583E.
19 See page 5 of the document submitted by the Czech authorities in April 2010.
20 See 3rd paragraph page 1 of the information submitted in December 2009 DH-DD(2010)583E.
21 Paragraph 80 ECRI report of 2 April 2009.
22 §202-204 of the judgment D.H. v Czech Republic.
23 See page 5 of the document submitted by the Czech authorities in April 2010, DH-DD(2010)584E.
24 §206 of the judgment D.H. v Czech Republic.
25 For more detail see the notes from the 1086th Committee of Ministers’ meeting of June 2010.
26 As set out in the first submission of 09.04.09, for more detail see the notes from the 1086th Committee of Minister’s meeting of June 2010.
27 previously Special Schools at the time of the judgment, see also paragraph 75 of the ECRI report of 2 April 2009.
28 Paragraphs 79, 85 and 87 of the ECRI report of 2 April 2009; Section V, page 10 of the Memorandum of 23 November 2009 submitted under Rule 9 to the Committee of Ministers by a coalition of NGOs.
29 §206 of the judgment D.H. v Czech Republic.