J U R I D I C U M
The Right to Education: Discrimination of Roma People
Determining Violations of the ECHR
Nora Gahnström Kibayi
VT 2020RV600G Legal Science with Degree Project (Bachelor Thesis), 15 hp. Examinator: Adam Croon
Abstract
Through the European Convention on Human Rights, individuals within the jurisdiction of European Union Member States are granted the right to education. This right has been stated as an important part of the strive towards a socially inclusive and equal European Union. Furthermore, it has been described as something going far beyond formal school to have a great impact on individual’s social life, future employment opportunities, and overall life quality. On both individual and societal levels, accessibility of adequate education and learning platforms are of high importance. An additional, equally important right is the right not to be discriminated based on personal attributes, also covered within the Convention. Combatting racism and prejudice is a fundamental goal for the EU as a whole. However, discrimination based on ethnic origin has been seen in numerous European Union Member States that have grave negative impacts on certain religious and ethnic groups of Europe. The Roma community has been described as among the most vulnerable ethnic groups with numerous complaints made to the European Court of Human Rights regarding discrimination. Within the educational field, Roma children have been found to face discrimination multiple times, resulting in the Court deciding violations have occurred. Patterns of practices segregating children of Roma descent from non-Roma children in schools have been observed in different Member States by numerous EU institutions and human rights-organs.
The purpose of this essay is to examine the situation regarding discrimination of Roma children within the field of education in Europe. Based on observations and reports made by EU institutions, situations from the past and the present are analyzed in order to reach a clearer view of where the main problems are situated. With the aim of finding how the two rights regarding education and non-discrimination are protected according to the Convention, a presentation of the relevant Articles and cases relating to the issue is discussed. What it shows is that a number of factors are needed to be fulfilled in order for the Court to deem an event as discriminatory, directly or indirectly. Aspects considered while judging cases of discrimination are for example proportionality and the potential objective justification in forms of aims to be reached and measures being employed. The upcoming question is then how these measures have been applied in cases relating to Roma children’s right to education. In its judgments, the Court has continuously taken the vulnerable state of the Roma population into account when evaluating complaints. It has been of importance to consider how the Roma community’s challenging past has influenced their current situation in different societies. What might be among the most central observations of the essay is the fact that discrimination based on ethnic origin is something so invidious that the Court cannot accept any claimed aim or justification for its occurrence, as noted in case D.H and Others v. Czech Republic. Inclusion within all sectors of society regardless of ethnic background is crucial for the aim that the European Union strives to maintain. Moreover, a functioning and equally accessible education sphere is beneficial for society development overall, making the aspects of strong education policies and anti-discrimination a part of everyone’s best interest, regardless of one’s own background. Finally, it shall be noted that although multiple efforts have been made in the recent years concerning equal access to education for Roma children, issues still persist within the Member States. Recent reports show problems still remain regarding segregation and racism directed towards the Roma community. In order for the goal of educational inclusion in the EU to be reached, thus meeting the provisions of the Convention, additional efforts and measures will be needed by both Member States concerned and the various human rights-organs.
List of Abbreviations
CoE Council of Europe
ECRI European Commission against Racism and Intolerance
ECtHR/the Court European Court of Human Rights
ECHR/the Convention European Convention for the Protection of Human Rights and Fundamental Freedoms
EU European Union
FRA European Union Agency for Fundamental Human Rights
Table of Content
1. INTRODUCTION ... 1
1.1.BACKGROUND ... 1
1.2.PURPOSE, RESEARCH QUESTIONS AND DELIMITATIONS ... 2
1.3.METHOD AND MATERIAL ... 3
1.4.DISPOSITION ... 4
2. THE RIGHT TO EDUCATION ... 4
2.1.ECHR–ARTICLE 2 OF PROTOCOL NO.1... 4
2.2.ECHR–ARTICLE 14 ... 6
2.2.1.DIRECT AND INDIRECT DISCRIMINATION ... 6
2.2.2.OBJECTIVE AND REASONABLE JUSTIFICATION ... 7
2.3.CONCLUDING REMARKS ON ARTICLE 14 AND ARTICLE 2 OF PROTOCOL NO.1 ... 7
3. DISCRIMINATION OF ROMA IN EDUCATION ... 8
3.1.OBSERVATIONS IN THE CZECH REPUBLIC ... 8
3.1.1.D.H AND OTHERS V.CZECH REPUBLIC ... 10
3.1.2.DISSENTING OPINIONS ... 12
3.2.OBSERVATIONS IN CROATIA ... 14
3.2.1.ORŠUŠ AND OTHERS V.CROATIA ... 14
3.2.2.DISSENTING OPINIONS ... 16
3.3.CONCLUDING REMARKS ... 17
4. ROOM FOR IMPROVEMENT ... 17
4.1.REPORTS, RESULTS, AND REMARKS BETWEEN THE YEARS OF 2009-2018 ... 17
5. CONCLUSION ... 19
1. Introduction
1.1. BackgroundThe right to education has been described as a highly valuable part of promoting social cohesion. As one of the main objectives within the aim of making the European Union (EU) “the most competitive and dynamic knowledge-driven economy”,1 education greatly influences
future life chances and employment opportunities for individuals of all ages. As a result, making it accessible for everyone throughout Europe is a crucial right for both individuals and society as a whole. Education has been defined by the United Nations Committee on the Rights of the Child as something going far beyond formal school to encompass a broad range of life experiences for children.2 It is emphasized within many European Union organs that education
is a crucial part of the child’s remaining life, having a great impact on development in terms of academic abilities, forming of personality, and social life. A steady and secure educational environment is an initial building block towards a full and satisfying future within society. Although individuals within the European Union Member States are afforded the right to education and the right to not be discriminated, issues still remain regarding violations within these areas. The Roma community is a minority that has been subject to discrimination in numerous aspects of society, education being one such area.
This ethnic minority group has a long history in Europe, and with 6 million Roma individuals residing in a Member State, it is the largest ethnic minority in Europe.3 Originating from
Northern India, the Roma people became a Nomadic group around the 11th century, moving
through Asia Minor and subsequently in to Europe.4 Since their arrival, their presence in Europe
has been plagued by suspicious views and xenophobia from society, something that is evident through early European literature. Chronicles from 15th century western Europe described
“creatures” who had turned up, and “a large crowd of alien vagabonds” that had suddenly appeared.5
What has followed since those days in history are continuous turbulent times marked by xenophobic views and discrimination. The Roma community as a whole were for long described as the lowest standing individuals of Europe, with noted chroniclers continuing to discuss the group as suspicious and unreliable with malicious tendencies, refused from many nations.6 Rejection from the general society continued much due to the concept of criminal
1 European Council: The Lisbon Strategy, 23 and 24 March 2000.
2 UN Committee on the Rights of the Child, General Comment No. 1: The Aims of Education (Art. 29) 17 April
2001, CRC/GC/2001/1.
3 Council of Europe, ’Roma and Travellers’ https://www.coe.int/en/web/roma-and-travellers accessed 16 April
2002.
4 Staci Strobl, “Crime and Justice: the Roma in Europe and North America”, Taylor & Francis Online, vol. 38,
No. 2, 2014, p. 105.
5 Shahar, S. (2006). Religious Minorities, Vagabonds and Gypsies in the Early Modern Europe. | Stauber, R &
Vago, R. Roma: A Minority in Europe, New York and Budapest, Central European University Press, p. 5-6.
biology during the 19th century,7 and the horrors of the Holocaust during the following century
affected millions of Roma individuals.8
As a community, the Roma population has been subject to discrimination in various forms since their arrival to Europe. The discrimination in modern times differ from the past situation described above, but still reflect on the vulnerable state that the Romas have been in since the very start. In modern day cases and complaints, the European Court of Human Rights (hereinafter referred to as the Court or ECtHR) has noted that their difficult history and continuous uprooting has resulted in the Romas having a special disadvantage as a community, requiring a specific need for States to protect them. This fact has been expressed in the multiple cases concerning discrimination of the Roma population regarding education, such as D.H and
Others v. Czech Republic. The right to education is covered in Article 2 of Protocol No. 1 to
the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the ECHR or the Convention) and guarantees individuals the right to receive education without discrimination, a right that certain Member States of the European Union have been found to breach when it comes to the rights of Roma individuals. On a Member State level, the methods to handle these issues tend to differ widely depending on the State in question, and attitudes of racism or xenophobia have been deemed part of the problem in many cases concerning discrimination. The Roma community has on numerous occasions been deemed the most vulnerable group in education in many European Member States, meaning extended measures for their protection can be needed.9
1.2. Purpose, research questions and delimitations
Discrimination of Roma children within the field of education is something that has been observed and discussed by various human rights bodies and EU institutions. A particular problem relating to this is segregation of Roma children by placing them in schools and classes intended for students with special needs.10 There are multiple societal aspects responsible for
these practices, all of which will be discussed throughout this study. There have also been numerous cases brought before the Court concerning these issues, specifically, alleged violations of Article 2 of Protocol No. 1 to the Convention taken in conjunction with Article 14 regarding prohibition of discrimination. Since the Roma population is the largest minority in Europe and simultaneously the most vulnerable one,11 it could be of interest to examine
circumstances of their right to education in the EU and how the Court has previously worked with the complaints brought.
The purpose of the study is to examine discrimination of the Roma community within the right to education. Moreover, the purpose of the essay is to identify what has constituted a violation in cases relating to this issue, as well as examining where the major issues lay regarding Roma rights in the educational sphere. In order to identify how the Roma community is discriminated
7 Widmann, P. The Campaign Against the Restless: Criminal Biology and the Stigmatization of the Gypsies,
1890 – 1960. | Stauber, R & Vago, R. Roma: A Minority in Europe, New York and Budapest, Central European University Press, p. 20.
8 Hancock, I (1999). Romani Victims of the Holocaust and Swiss Complicity. | Brooks, Roy. When Sorry Isn’t
Enough: The Controversy over Apologies and Reparations for Human Injustice. New York and London, New
York University Press, s. 69.
9 European Monitoring Centre on Racism and Xenophobia, Annual Report 2005, Part II (EUMC I) 69. 10 Sandra Fredman, Comparative Human Rights Law, New York, Oxford University Press, 2018, p. 377. 11 European Monitoring Centre on Racism and Xenophobia (n 9).
and what the Court has put emphasis on while determining a violation, the problem statements will be as follows:
- How is the right to education, and the right not to be discriminated, protected within the ECHR?
- How has the Court determined there has been discrimination under the Articles, and when not? Which aspects have been highlighted?
- In the light of more recent reports, is there room for improvement and a need for additional measures to be taken in order to protect the right to education for Roma individuals?
Since there are multiple cases concerning Romas and discrimination within education, the issue of ethnic segregation has been chosen. Two cases relating to this area will be reviewed in detail. There are two European countries that are more closely examined when it comes to the situation for the Romas in education. These countries were chosen since the two cases discussed took place there, making it interesting to compare past and present situations. The study will also include a brief discussion of a case where no violation was found under the two Articles, but concerning religious conviction instead of ethnic origin. This is in order to compare the reasoning of the Court concerning the issue of discrimination on religious versus ethnic aspects. Since there are numerous cases relating to these Articles, judgments delivered between the years of 2005 – 2010 have been chosen for a closer analysis. Although the right to education pertains to both children and adults, this study focuses on the right to education and violations of these rights for Roma children.
1.3. Method and material
In order to examine how these rights are to be protected according to the Convention, a legal dogmatic method is used. The purpose of the legal dogmatic method has been described as a way to reconstruct a legal rule, or as a means to find a solution for a legal problem by applying the said rule to a legal issue.12 Oftentimes, this method has its basis in concrete problem
statements which requires dedication in analyzing the varying solutions.13 As the circumstances
of the subject, the nature of the problem statements, and potential solutions are discussed and analyzed throughout the essay in order to finally answer the problem statements, the legal dogmatic method is a helpful method to utilize.
In order to determine how the rights of the Roma people are to be protected in terms of education and the right to not be discriminated, the Convention is a major source within this study. Article 2 of Protocol No. 1 to the Convention and Article 14 are the Articles closely discussed. Besides the ECHR, case-law from the European Court of Human Rights make up a crucial part of this study in order to reach answers to the second problem statement mentioned above. Two cases in particular (D.H and Others v. Czech Republic and Oršuš and Others v.
Croatia) that have had a great impact on the area of equal treatment within the educational
sphere are discussed. Additionally, reports and material from organs such as the European Commission against Racism and Intolerance (hereinafter referred to as ECRI), United Nations (UN), the Council of Europe (CoE), and other EU-organs are used as they form an important reference in many Court judgments. Finally, secondary sources such as articles, literature, and other publications relating to European history, the right to education, and the current situation
12 Nääv, Maria och Zamboni, Mauro, Juridisk metodlära, 2 volume, Studentlitteratur AB, Lund, 2019, p. 21. 13 ibid, p. 36.
for the European Roma community are employed in order to fully analyze the subject and reach a conclusion to the problem statements.
1.4. Disposition
This thesis is divided into five chapters. Chapter two of this essay examines the right to education and the prohibition of discrimination under the ECHR. It is completed by concluding remarks on what its statements mean in practice. The aim of chapter two is to determine what protection individuals of EU Member States are granted in terms of education and the right not to be discriminated. Chapter three discusses discrimination of the Roma population in the field of education. Reports and observations made in two European countries, the Czech Republic and Croatia, by human rights bodies are presented and discussed as well as two noted cases from the same States. These cases relate to the Articles examined in chapter two. The work conducted by the Court in terms of this subject, as well as dissenting opinions expressed by judges in the cases, are discussed and analyzed. The aim of chapter three is to examine the situation for the Roma population in Europe concerning the right to education, and, subsequently, to find what aspects the Court has emphasized while determining the rights of Roma applicants have been infringed. Chapter four examines the situation for the Romas within the field of education according to reports made in the years following the Court judgments discussed. The purpose of chapter four is to identify the measures taken regarding the subject, and to find if the reported situations show positive changes have been made by National authorities in Croatia and the Czech Republic, or if there is room for improvement. The essay finally concludes with chapter five where the findings will be summarized, and a conclusion to the problem statements will be restated and presented.
2. The Right to Education
2.1. ECHR – Article 2 of Protocol No. 1
The international treaty European Convention on Human Rights and Fundamental Freedoms (ECHR) was drafted within the Council of Europe and entered into force in 1953. Among the founding aims, as stated in its preamble, is the wish to see Member States take the initial steps needed to collectively enforce rights that had previously been set out in the 1948 Universal Declaration of Human Rights.14 Ratification of the Convention obligates States to undertake
certain international legal duties in order to guarantee individuals an amount of civil and political rights. The Convention protects everyone within the jurisdiction of the EU Member States and grants individuals the opportunity to file complaints to the European Court of Human rights in France in case they believe a State has failed in protecting their enjoyment of one or more of the rights that the Convention offers.15 Since its establishment in 1959, the Court has
delivered over 10 000 judgments.16
14 Preamble of the Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)
(UDHR).
15 Ed Bates, The Evolution of the European Convention on Human Rights and Fundamental Freedoms, Oxford
Scholarship Online, 2010, p. 1-2.
16 Council of Europe, ’The Court in Brief’ https://echr.coe.int/Documents/Court_in_brief_ENG.pdf accessed 16
The right to education is stated within Article 2 of Protocol No. 1 of the ECHR. It initially describes a guarantee for the right to education for individuals, and secondly, a right for parents to have their children educated in a way that conforms with their religious and philosophical beliefs.17 It covers the right to education in elementary, secondary, and higher education as well
as special courses, meaning it pertains to both children and adults.18 In itself, the Article calls
for regulations by the States which may vary over time and place in accordance with community needs and resources, as well as individual needs. Regulations made may never conflict with other provisions of the Convention, and therefore, a just balance is required between the protection of the general community interest and respect for fundamental human rights.19 There
can, however, be instances where the right to education can be restricted. In such a case, the action must pursue a legitimate aim that also is foreseeable for those affected.20 In order to
comply with Article 14 concerning anti-discrimination, which is further explained below, it is not enough to have a legitimate aim – the aim also needs to be proportionate.21
As mentioned, the right to education is not absolute and can be subject to limitations. This gives States a certain margin of appreciation within this area, although the final observations and decisions regarding consensus with the Convention lay in the hands of the Court.22 An example
of a case before the Court where no violation of Article 2 of Protocol No. 1 taken in conjunction with Article 14 was found is the case of Leyla Şahin v. Turkey. The applicant was a practicing Muslim studying medicine in Istanbul, viewing it as her religious duty to wear the Islamic headscarf.23 During her fifth year of studies, however, a ban was implemented on the University
restricting students from partaking in lecture and examinations while wearing religious headscarves. She accepted that the right to education is something needing to be regulated by the State,24 but also argued that this ban interfered with her right to education under the Article.
The Court, however, highlighted the purpose of this restriction – preservation of the secular character of educational institutions.25 In assessing the principle of proportionality, they found
reasonable proportionality between the means used and the aim pursued. The measures that were taken did not hinder pupils in performing their duties connected to their religious conviction, and this application of the internal regulations satisfied the requirement of weighing up the relevant interest at stake. The university authorities had also sought means where they would avoid having to turn students away for wearing headscarves while at the same time respecting the obligation to honor and protect the rights of others, and the interests of the education system.26 The foreseeability of this regulation was also one of the reasons the Court
decided no violation was found – they deemed it unrealistic that Ms Shahin had not been informed about the new rules and why they were to be implemented.27
17 Council of Europe/European Court of Human Rights, Guide on Article 2 of Protocol No. 1 to the European
Convention on Human Rights, p. 5.
18 ibid, p. 7.
19 Belgian Linguistic Case, § 5 of ”the Law”-section. 20 Council of Europe (n 17), p. 5.
21 ibid, § 46.
22 Leyla Şahin v. Turkey, Application No. 15766/03, Strasbourg 10 November 2005, § 154. 23 ibid, § 14.
24 ibid, § 145. 25 ibid, § 158. 26 ibid, § 159. 27 ibid, § 160.
2.2. ECHR – Article 14
The ECHR states multiple rights enjoyed by those within an EU Member State. Among the rights described are the right to a fair trial, freedom of expression, and the prohibition of torture. The subject of anti-discrimination is stated within Article 14; ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’28
An important aspect frequently underlined by the Court is that Article 14 only complements the other substantive provisions of the Convention and its Protocols, meaning it is not discrimination as such that is prohibited, but discrimination of the enjoyment of the rights and freedoms stated within the Convention.29 However, there must not necessarily be a violation of
a substantive provision in order to apply Article 14. The Court has therefore recognized applicability of the Article in cases where no violation has been found in the substantive objective itself.30
2.2.1. Direct and indirect discrimination
There are different forms of discrimination that the Court takes into account, these being direct and indirect discrimination. There is no definition to what constitutes direct discrimination within Article 14, but direct discrimination as an expression describes a “difference in treatment of persons in analogous, or relevantly similar situations” and “based on an identifiable characteristic, or ‘status’”.31 Indirect discrimination could mean disproportionately harmful
effects of a measure or general policy that, although stated in a neutral way, leads to a particularly discriminatory effect on a specific group.32 It is thereby required that people in
similar situations are treated equally. As previously mentioned, not all differences in treatment constitute a discrimination. In order to establish if a discrimination has taken place, a so called discrimination test is used to determine whether or not there has been an “objective and reasonable justification”. If no such justification is found, it could be grounds for a discriminatory situation.
Discrimination related to a person’s ethnic origin, racial discrimination, has been described by the Court as a particularly invidious form of discrimination. Authorities are expected to take serious actions against this and use all possible measures to combat racism.33 The fact that
diverse societies in Europe are to be viewed as an enrichment rather than a threat is something the Court has emphasized, and therefore, no form of racial discrimination can be considered to possess an objective and reasonable justification, explained further below.
28 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (ECHR) art 14.
29 Council of Europe/European Court of Human Rights, Guide on Article 14 of the European Convention on
Human Rights and on Article 1 of Protocol No. 12 to the Convention’, p. 6.
30 See Carson and Others v. United Kingdom, Application No. 42184/05, Strasbourg 16 March 2010. 31 D.H and Others v. the Czezh Republic, Application No. 57325/00, Strasbourg 13 November 2007, § 175. 32 Council of Europe (n 29), p. 11.
2.2.2. Objective and reasonable justification
In order to determine if an act is discriminatory, the Court applies a certain test.34 Firstly, the
Court examines if there has been a difference in treatment of persons in analogous or relevantly similar situations, or a failure to treat differently persons in relevantly different situations. If that is the case, they examine if the difference, or lack thereof, was objectively justified or not. In particular, it needs to be established if the treatment pursued a legitimate aim and if the means employed are reasonably proportionate to the aim pursued.
When filing a complaint under Article 14, the applicant must first show that he or she has faced treatment different to someone in a relatively comparable situation. If that requirement is fulfilled, an act can be deemed discriminatory by the Court if the difference in treatment lacks objective and reasonable justification, meaning it does not pursue a legitimate aim, or if no reasonable proportionality can be found between the applied means and the aim sought to be realized,35 as explained in the case of Leyla Şahin v. Turkey.
2.3. Concluding remarks on Article 14 and Article 2 of Protocol No. 1
The objectives within the ECHR call for equality and guaranteed rights for those covered by the jurisdiction of the Member States. Education as a human right is an important building block in the aim towards not only a socially inclusive European Union, but for a thriving and economically competitive Union. At first glance, it may appear that a large amount of circumstances are needed to be fulfilled in order to find a violation and thus discrimination. In an event where individuals file a complaint under Article 14, not only the act itself is of importance. Factors such as intent, aim, and measures taken by the State matter and affect the outcome in the courtroom. Cases concerning discrimination based on religion and ethnicity are of a certainly sensitive nature, leading to debates of how these freedoms should be protected in accordance with the Convention. The case of Leyla Şahin v. Turkey, for example, had a dissenting opinion from judge Tulkens, noting the ban on headscarves as a violation of the applicant’s right to religion and subsequently interference of her right to education,36 agreeing
with the Chamber’s previous judgment that a violation is indeed found. Social inclusion and freedom of religious expression are among the pillars crucial for everything the European Union strives to stand for, and strong different opinions between these freedoms, nations’ domestic rules, and margin of appreciation can often be heard. The lines can at times be fine concerning the right to express ones religious conviction and the right for educational institutions to be secular, especially in such a culturally diverse Union as the EU is. However, restrictions or differential treatments when it comes to ethnic grounds are of a highly sensitive manner where the rights of EU citizens are not to be compromised, and it is an area where the leading organs expect the Member States to take all measures possible to ensure ethnic inclusion and combat racism.37 Now that the legal grounds for these two Articles of the Convention have been
presented, the thesis will further discuss the situation for the Roma community within the field of education in Europe.
34 Council of Europe (n 29), p. 15. 35 ibid.
36 Leyla Şahin v. Turkey, Dissenting Opinion of Judge Tulkens, §§ 13 – 20. 37 ibid (n 32), § 176.
3. Discrimination of Roma in Education
3.1. Observations in the Czech RepublicEducation can be described as a multifaceted right that bridges the boundaries between socio-economic rights, civil, and political rights.38 Socially, it guarantees individuals free primary
education by the State. In the freedom aspect, it protects individuals from the risks of the State using education to promote propaganda or impose a dominant culture or religion.39 The
dimension of equality and inclusion is of equal importance.
Segregation based on ethnicity is perhaps one of the most harrowing examples from history of discrimination within education. Brown v Board of Education is a famous American case from 1954 concerning racial segregation of African-American children throughout the South. Segregation in this manner was for long defended on the basis of segregation not necessarily having to contradict equality, all under the slogan of “separate but equal”.40 In the case, an
unanimous US Supreme Court declared that ‘in the field of public education, separate but equal has no place. Separate educational facilities are inherently unequal’.41 Furthermore, the
Supreme Court also noted that ‘to separate children from others of similar age and qualifications solely because of their race generates a feeling of inferiority in their status in their community that may affect their hearts and minds in a way unlikely ever to be undone’.42
1950’s Southern States with Jim Crow laws and legally enforced separation of individuals based on ethnicity may to some seem like distant times. There has, however, been more recent reports and cases of segregation within the school systems of Europe, but this time affecting the Roma community.
The situation concerning Romas and their vulnerable situation within education has been monitored by various EU bodies and organizations. One is ECRI, a human rights body specializing in the fight against racism, discrimination and tolerance in Europe. As part of its country monitoring, ECRI analyses the situation in the EU Member States and thereafter delivers recommendations regarding how to face the issues with racism and discrimination identified.43 Issues facing the Roma community is a subject frequently discussed in previous
reports. One such example is the Czech Republic. Since the very first reports concerning the Czech Republic, racism and violence directed specifically towards the Roma community has been detected and described. The State has faced problems with mistrust and public hostility towards the community44 which likely complicates adequate protection in various societal
fields. In the following years, ECRI has expressed a grave concern regarding discrimination within the education field affecting the Roma minority.45
38 Fredman (n 10), p. 373. 39 ibid.
40 ibid, p. 375.
41 Brown v. Board of Education, 347 US 483, US Supreme Court 1954, §495. 42 ibid, § 494.
43 Council of Europe, European Commission against Racism and Intolerance, available at:
https://www.coe.int/en/web/european-commission-against-racism-and-intolerance, accessed 29 April 2020.
44 European Commission against Racism and Intolerance (1997) First Report on Czech Republic, p. 5.
Strasbourg: Council of Europe.
45 European Commission against Racism and Intolerance (1999) Second Report on the Czech Republic.
In their report on the Czech Republic 1999, the Commission describes how Roma children are vastly overrepresented within the special school education system, meant for pupils with special needs, after completing attitudinal tests. Referring these children to the special education system reportedly often happened quasi-automatic for various reasons, such as parents tending to prefer this solution due to lesser risk for abuse from the other students, and unity with other children from the same ethnic community.46 By relegating all these Roma children to these
schools meant for other purposes results in less opportunities for them in terms of educational preparations, leading to limited chances for further studies or employment. ECRI further noted that most Roma children in the Czech Republic do not attend kindergarten,47 serving as another
possible reason for the poor results obtained in the pre-school attitudinal tests mentioned previously, ultimately landing them in the special school education system. There were also encouragements and recommendations for assisting the parents in understanding their children’s need for attending regular education, as well as making sure they are enrolled in kindergarten.48
Further on, the observations are of similar character. In the 2004 report, ECRI points out the continuing practice of sending Roma children to schools meant for pupils needing special education. This is noted as something having a grave effect on the children for the rest of their lives, both in terms of segregation from mainstream society and from the future educational and employment-sphere.49 Lack of adequate information concerning the long-term consequences of
consenting to special education schooling for parents and legal guardians were still noted as a grave problem. A new issue discussed in this report was economical changes in the system, meaning schools competed for students to enroll.50 A result of this is the special schools trying
to preserve its Roma students, and also trying to attract new pupils to their institutions in order to keep the classes filled. Therefore, parents of Roma children were encouraged to place them in these classes. These institutions were presented as a chance for the child to receive extra attention while getting education among other Roma children with similar home environment and cultural backgrounds.51 The parents still trying to enroll their children to the mainstream
school system reportedly faced issues with discrimination. This economic competition was also affecting the mainstream schools who turned away Roma students due to fear of being labeled a ‘gypsy’ school, leading to non-Roma parents choosing other schools for their children.52
In 2006, the European Monitoring Centre on Racism and Xenophobia concluded that the most crucial problem for the Czech Republic educational system is the constant segregation of Roma children by placing them in ‘special schools’, following intelligence tests.53 A groundbreaking
case where many of the elements mentioned within this study can be seen is D.H and Others v.
Czech Republic. The case concerned segregation of Roma children by using certain educational
IQ tests, resulting in placements in these special schools. These schools were meant for children with learning disabilities, but were evidently inferior to the mainstream educational institutions. The tests were allegedly applied equally to all children, but an overwhelming majority of the children placed in the special schools were Roma. Data showed that more than half of all the
46 ibid, § 33. 47 Ibid, § 34. 48 ibid, p. 14-15.
49 European Commission against Racism and Intolerance (2004) Third Report on the Czech Republic, p. 21-22.
Strasbourg: Council of Europe.
50 ibid, § 108. 51 ibid, § 108. 52 ibid, § 109.
Roma children were assigned to special schools in the city of Ostrava, Czech Republic, while only 1.8% of non-Roma students were assigned to attend special school.54
3.1.1. D.H and Others v. Czech Republic
The applicants in the case, 18 Roma children, had all been placed in schools for children with special needs in the city of Ostrava. Documents presented to the Court showed that the parents of the applicants had consented to, and at times even expressed requests, of their children being placed in a special school. This consent was given by signing a form. The applicants involved later asked for the Ostrava Education Authority to reconsider this decision, however. Their argument was that the testing of their intellectual capacity had not been reliable, and the parents had not received adequate information regarding the consequences of giving consent to them attending special schools. According to the applicants, this decision infringed on their right to receive education without being discriminated, and it breached statutory requirements.55
As mentioned above, parent awareness is crucial in decisions concerning children’s education. Parents’ past experiences of prejudice and discrimination has been mentioned as a reason affecting their choice whether or not to enroll their children in mainstream schools instead of the special schools, while also affecting their realization of how educational qualifications later could lead to improved chances for employment and overall quality of life.56
In its defense, the Government first explained the difference in treatment between Roma and non-Roma children by a need to adapt the education system to the capacity of those who require special needs. In their submission, the placement happened due to the applicants’ genuine need for special education. This need was establishment after the psychological tests that all pointed to a low intellectual capacity. Secondly, following the recommendations from the psychological center to place them in a certain schools, the parents had the final say by consenting to the placement, which they did. No child could have been placed in these special schools without consent from the parent. Therefore, the argument that this was a form of ethnic segregation was unsustainable.57 Regarding this alleged consent given by the parents to place their children in
special schools, the Court noted that the parents, members of a disadvantaged group and often poorly educated, could not have been capable of weighing up all the present aspects to the case, and what their signature could result in and mean for their children’s future life. Domestic authorities had also failed in providing valuable information that would help them make an informed decision, and the Roma parents were in some aspects faced with a dilemma that could only have one outcome: a choice between an ordinary school with lacking resources concerning their child’s cultural and social differences as well as a risk for ostracism, or a special school where most of the students were Roma.58 Since the consent given by the parents signified an
acceptance for a difference in treatment, it could be seen as a waiver of the right to not be discriminated.59 The Court noted that no such waiver can be accepted as it would counter the
fundamental public interest of the prohibition of racial discrimination. Consequently, the Court decided there had been a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol 1 towards all applicants involved.
54 Fredman (10), p. 377.
55 D.H and Others v. the Czezh Republic (n. 32), § 8.
56 Jack Greenberg, Report on Roma Education Today: From Slavery to Segregation and Beyond, Columbia Law
Review Association, Inc, 2010, p. 9.
57 D.H and Others v. the Czezh Republic, § 197. 58 ibid, § 203
As stated earlier, the objectives within Article 14 encompass numerous factors such as indirect or direct discrimination, intent, proportionality, and means used. All these factors were present in an interesting way in D.H and Others. In the present case, the applicants alleged there had been indirect discrimination since their community was affected in a discriminatory way. In their appeal following the initial decision made by the Chamber of no violation, the applicants wished that the Court corrected the contradictory and bizarre test that the Chamber beforehand had conducted in order to determine if there had been discrimination. If a general measure or policy had disproportionately prejudicial effects on a specific group of people, it could still be considered discriminatory even if it is not directly aimed at the group in question, something the applicants noted. The Chamber had, however, requested the applicants to prove Czech authorities’ discriminatory intent, and thereby departed from the Court’s previous case law.60
A request to prove such intent was unrealistic in the applicants’ view. What they wished to have established was that they had been less favorably treated than non-Roma children in a comparable situation, without an objective and reasonable justification. This had, in their view, resulted in indirect discrimination.
The Court noted that it would be very difficult for the applicants to prove the authorities’ discriminatory intent.61 As mentioned earlier, the Government claimed there had not been a
difference in treatment as these intelligence tests were taken by all children, Roma and non-Roma alike. Here, for the first time, the Court determined that the right to equality encompasses more than equal treatment.62 In situations where the same treatment results in a disproportionate
disadvantage for a certain group, it is not needed to prove the discriminatory intent from the authorities in question. Instead, it becomes a question of indirect discrimination, and the burden of proof is shifted to the Government to show how the different impacts of the tests stemmed from objective factors, and not ethnic origin.63 This can be compared to the impactful
statements made by the Supreme Court in the case of Brown v. Board of Education mentioned earlier – the right to equality is not simply equal treatment in all cases, true equality can be of a more complex nature where additional factors need to be added to the situation in order to find the fair path in the light of the current circumstances.
In their assessment, the Court notes the vulnerable status that the Roma community has faced since very early times. In previous case law, such as Chapman v. the United Kingdom, it was observed that special protection needs to be given to minorities’ security, identity and lifestyle – not only for themselves, but for the sake of cultural prospering for the concerned community as a whole.64
The Court addressed the unproportioned amount of Roma children enrolled in special education. Although it was hard to establish the exact number of Roma children affected in the city of Ostrava, numbers supplied by the European Monitoring Centre on Racism and Xenophobia showed that more than half of the Roma children in the Czech Republic attended special schools. Statutory provisions relevant to the case were couched in neutral terms, but still had a significantly larger impact on the Roma community than on children of other ethnic groups, resulting in disproportionate numbers. These facts were deemed to prove indirect discrimination, leading to the burden of proof shifting from the applicants to the Government
60 ibid, § 129. 61 ibid, § 189.
62 ibid, (n. 10), p. 378. 63 ibid, p. 378.
in terms of showing that this difference in impact of the legislation was due to objective factors, and unrelated to ethnic origin.65
It was ultimately decided by the Court that these tests did not live up to the objective and reasonable justification under Article 14.66 Different independent bodies had previously
questioned the adequacy of these test. For example, the Advisory Committee on the Framework Convention for the Protection of National Minorities had observed the fact that Roma children without a mental handicap often were placed in special schools due to real, or perceived, language and culture differences between the Roma and the majority.67 Also, the Council of
Europe Commissioner for Human Rights observed the frequent placement of Roma children in these classes and expressed that there was no adequate psychological assessment, and the real criteria clearly is ethnic origin.68
The Court noted the danger that the tests were biased and not conducted with respect to the certain characteristics of the Roma children taking them. For this reason, the tests could not be justified for the difference in treatment.69
3.1.2. Dissenting opinions
There were dissenting opinions to the case of judges who did not agree with the outcome. An interesting example is that of judge Javier Borrego, a Spanish judge with a long history in work related to human rights in Europe.70 He expressed a certain degree of sadness due to the final
judgment. What is interesting about his point of view is the question of discrimination and to what degree the ethnic aspect was of relevance in this present case. As mentioned, the Chamber at first pointed out that it is not the role of the Court to assess the overall social context of the Roma situation in a way that prescribes to various organizations. Its role is to examine the facts of a case and judge based on that.71 Borrego feels as if the Court in this case does exactly that,
and directs criticism towards the decision since much effort and thought was spent in discussing the historical background of the Romas as well as including information from different organizations with insight in their situation. In particular, Borrego notes paragraph 182 of the judgment with reasoning pointing to the fact that the constant uprooting and difficult history the Roma community has gone through makes them a vulnerable group, which holds value while deciding a case of this nature. Borrego questions if this is something the Court shall be doing. He also compares this as the Court taking on the role of ECRI.72 This sheds light on the
fact that the opinions of the majority and of Borrego alone are widely different in this aspect. If the Court did not take the Roma’s vulnerable position as a European minority into question while assessing the case, the outcome might have been different. In my own view, however, attributes relating to ones’ ethnic inherency is of high importance in cases relating to this subject. The claim by the Czech Republic that separation of students can be for their own benefit is not wrong in itself. There must, however, be adequate reason for such a separation to take place. The intentions must be of the right reasons and it shall be clear beyond any reasonable doubt that the segregation is made for reasons beneficial for the pupils, and not for any other
65 D.H and Others v. the Czezh Republic, (n 31) § 195. 66 ibid, § 199.
67 ibid, § 200. 68 ibid, § 77 69 ibid, § 201
70 European Centre for Law and Justice, Javier Borrego, available at: https://eclj.org/writers/javier-borrego,
accessed 9 May 2020.
71 D.H and Others v. the Czezh Republic (n 31), Dissenting Opinion of Judge Borrego Borrego, § 7. 72 ibid.
reason. Reflecting upon the findings of the ECRI reports previously mentioned, it is clear that prejudice and discrimination is present in this State. As mentioned earlier, the Court established that discrimination based on ethnicity is something so vile it cannot be justified, and authorities are expected to take adequate measures in order to combat racism. In order to assure, and make a statement to all Member States of the EU that prejudice can never effect citizens to the point of discrimination, it is in my view of importance to highlight the situation for the ones negatively affected.
The second aspect that judge Borrego objected was the wordings relating to the parents’ vulnerability in the situation. In its judgment, the Court highlights the parents’ situation as members of a vulnerable community. As mentioned, one of the grounds for the final decision was the inability for the parents’ to fully weigh up all the aspects to the situation as well as the consequences for their consent.73 In judge Borrego’s view, this remark was both harsh and
unwarranted. Borrego viewed the stance taken by the Court concerning the parents to be preoccupying, unacceptable, and with a sentiment of superiority that strikes against the Roma parents’ human dignity.74 He mentions that the Court questions the parents’ capacity to perform
their parental duties by quoting how they were unconvinced that the parents as members of a disadvantaged group fully understood the consequences of giving their consent – this was deemed as superfluous and harsh by Borrego.75 Lastly, Borrego concludes his opinion by
referring to “[T]he Grand Chamber considers that, even assuming the conditions [for an informed consent] were satisfied, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest ...”.76
Borrego argues that with this statement the Court asserts that, even assuming the parent’s had been capable of giving an informed consent, are unable to choose schools for their children. He likens this to fighting racism with racism in a way very insulting for the victims.77
Personally, I would respectfully disagree with judge Borrego’s standpoint. While analyzing the judgment of the Court in the light of the circumstances for Romas across Europe, it becomes apparent that both past and current experiences have influenced their lives in multiple aspects. Discriminations of yesterday are manifested differently today, and that is where the Court comes in – to determine whether or not a violation of the Convention has happened with regards to more factors than just the outcome itself. The Court discusses the lack of reflection in the parent consents not due to a feeling of superiority, but rather because it is important to note as a contributing reason for the outcomes. As mentioned by ECRI above, adults from the Roma community often have little to no education themselves, which is due to multiple reasons. It is due to reasons mentioned such as prejudice, racism in society, and more. It is a fact that there was not adequate information available for these parents before they signed their consent. It is unlikely to me that the Court questions the parental abilities of the Romas as argued by Borrego. Rather, it seems as if the Court is well aware of the benevolence of the parents to indeed give their children as fruitful of an educational path as possible when it comes to receiving adequate assistance and having a social circle. Much proof for this can be found in the report from ECRI as well as the statements made by the parents. Many Roma adults in Europe have experienced prejudice and racism themselves, and by placing their children in institutions where the majority of the students were of the same background, the risk of ostracism would be severely decreased. To be informed that the children would receive the help they need in order to succeed
73 D.H and Others v. the Czezh Republic (n 31), § 203. 74 Dissenting Opinion of Judge Borrego Borrego (n 60), § 12. 75 ibid, § 13.
76 D.H and Others v. the Czezh Republic (n 31), § 204. 77 Dissenting Opinion of Judge Borrego Borrego (n 60), § 14.
academically in special schools must certainly have been influencing their choice. It is also relevant to note the strong objection other non-Roma parents have had to mixed schools. It should be rather safe to assume that a majority of all parents, regardless of ethnic background, wants their children to succeed in academics and life while being safe, seen, and assisted by teachers in the degree they need. This situation concerns more than a group of parents assigning their children to an institution and later regretting the choice made. It is also relevant to asses additional social and historical factors that have a greater effect on Europe’s most vulnerable minority than other individuals. These events have been seen multiple times, conducted in a systematic and quasi-automatic way that makes one wonder if there is a hidden thought behind these enrollments. All these factors weighed together makes it clear why the parents involved agreed to have their children enrolled in special schools from the beginning, and the judgment made by the Court is in my opinion the only sound result.
3.2. Observations in Croatia
Access to education for the Roma population has been reported as problematic in other EU Member States, such as Croatia. In ECRI’s second report on Croatia from 2000, a large amount of Roma children did at the time not attend school with some Croatian regions having no Roma pupils at all. Among the recommendations from ECRI were conducting investigations into the role of prejudice and stereotypes from the teachers’ sides.78 These potential prejudice could
reportedly lead to low expectations for the Roma children, and offering the teachers training concerning the particular needs of the Romas might help. Sufficient knowledge of the Croatian language upon entering the school system was another potential obstacle mentioned as some Roma students fell short in this area. Additional training in Croatian was presented as a tool for integrating young Roma children into the mainstream educational system.79 The training in the
national language, however, needs to be balanced with the access to education in their own Native language as well as getting the chance to get educated about their cultural heritage. Croatian authorities have pointed to the Romani language not being standardized, with many different dialects, as part of the reason why there is a lack of education in this language. Reportedly, the Roma community had not themselves asked for this sort of education. Roma representatives, however, had in fact expressed a wish for these elements to be included within the Croatian curriculum.80
3.2.1. Oršuš and Others v. Croatia
These issues became evident in a case from 2010, Oršuš and Others v. Croatia. The judgment for the case of Oršuš and Others v. Croatia was delivered in 2010 and also concerns the right to education for Roma children as well as racial segregation. The case concerned 15 Croatian nationals from different schools who all had Roma descent. These students had at times been attending classes with only Roma pupils in the different primary schools concerned.81 Having
classes of only Roma pupils allegedly was for the purpose of improving their language skills. The applicants, however, alleged that this method was inadequate. In their view, the ideal way to integrate the students with insufficient proficiency in the Croatian language would be to have
78 European Commission against Racism and Intolerance (2000) Second Report on Croatia, § 42. Strasbourg:
Council of Europe.
79 ibid.
80 European Commission against Racism and Intolerance (2004) Third Report on Croatia, § 142. Strasbourg:
Council of Europe.
them attend school with the other, non-Roma children. They argued that it would be more efficient for the children who speak another language at home to attend class together with the children speaking the majority language, while simultaneously taking classes in the majority language. To support their claim, they used facts presented by the Council of Europe, the European Union and the United Nations who all recommend integrating methods regarding education for Roma children.82 According to the applicants, this separation of classes had
discriminated them in terms of their right to education, on the basis of ethnicity. To their defense, the Government claimed that the applicants were placed in separate classes due to their insufficient proficiency of the Croatian language.83
Similarly to the case of D.H and Others v. Czech Republic, the State in question seems to claim a strive for protection of the Roma children as the reason for the events. In D.H and Others, the Government claimed these tests were conducted in order to assess what level the child is on, and the results from the Roma children allegedly required them to have special education. This then resulted in them being placed in classes for those with special needs. In the case of Oršuš
and Others, the Government claims inadequate knowledge of the national language as a reason
for the separation. Similarly to the case of D.H and Others, the Court noted that it cannot be ignored that the applicants belong to the Roma community. Their position as a vulnerable minority was therefore taken into account since it concerns a disadvantaged group with a need for special protection.84 Concerning the difference in treatment, which has to be proven in order
for it to be a discriminatory act, the Court referenced to D.H v. Czech Republic. The result from
D.H and Others was that there had been a clear disadvantage for the applicants, meaning it was
the responding State’s duty to prove it to be objective and justified. An important fact in Oršuš
and Others is that the decision to place children in certain classes due to insufficient language
level applied only to pupils of Roman descent. This in itself is a clear difference in treatment as it had a significant effect on one particular group.85 Moreover, there were concerning facts
mentioned in a report from ECRI regarding Romas in Croatia. Within the report is information that when the authorities had in fact tried to introduced integrated classes, they were met by great opposition from the non-Roma parents who had petitions signed against the plans. This resulted in the classes continuing to be separated.86
Furthermore, the Court notes that it does not necessarily have to be discriminatory to temporary place children in separate classes if there is a lack of adequate of language understanding – this act in itself does not need to be contrary to Article 14. What is needed in such case, however, is a legitimate aim to adapt the education system in a way beneficial for the child’s special needs.87 The Court noted that there was no legal basis for placing the applicants who did not
have enough command of Croatian in these special classes. Laws that the Government had relied on in order to take this decision did not include a need for separation if children did not comprehend enough Croatian. Neither had there been enough proof that these measures were taken all over Croatia by all children regardless of ethnic descent, in other words, this segregation only applied to the Roma students, meaning only they were affected. Moreover, they did not receive specific language courses in order to improve their Croatian, making it questionable if the aim of the State really was as they had previously argued. What they received instead was a diminished syllabus in Croatian, and neither were any efforts made to move them 82 ibid, § 115. 83 ibid, § 145. 84 ibid, § 147. 85 ibid, § 153. 86 ibid, § 154. 87 ibid, § 157.
to mixed classes once their language proficiency had indeed improved.88 Therefore, these
measures could not be considered as a common, general practice built for addressing problems with the Croatian language overall. This is part of the reason why the State ultimately was found guilty of violating Article 14 of the Convention taken together with Article 2 of Protocol No. 1.
3.2.2. Dissenting opinions
Oršuš and Others had a joint partly dissenting opinion by eight judges. They began their
argument by stating they do accept that indirect discrimination takes place when a provision appearing to be neutral affects people of a certain ethnic origin at a disadvantage compared with others, unless objectively justified by a legitimate aim and proportionate means of achieving it. However, they did not agree with the application of this principle in the case – they believed there had been an objective and reasonable justification for the measures applied.89 Firstly, they
establish that the applicants did not have enough command of the Croatian language to be able to follow lessons given in that language.90 Furthermore, they noted that decisions to take
relating to methods for assisting children with special needs is something belonging in the sphere of social policy, where States enjoy a margin of appreciation that is quite wide.91 In this
aspect, segregating children by placing them in different classes due to language command does not violate Article 14 and Article 2 of Protocol No. 1. Regarding the margin of appreciation, the judges also noted that setting up and planning curriculums falls within the competences of the Contracting States. Here they refer to the decision made in the case of Leyla Şahin v. Turkey, discussed earlier in this study.92 They point out that the Croatian authorities had a difficult task
to solve; the case concerns a small community with a large amount of children belonging to the Roma minority, who did not have enough command of the Croatian language. This lead to a situation where balancing was needed between two competing interests; the applicants and other Roma children alike needing to acquire enough knowledge of the language as quickly as possible while other students, both Roma and non-Roma, who had enough command in Croatian had an interest in not being held back too much in their own education for the benefit of a larger group who lacked proficiency. The judges point out the difficulties that must have been present in balancing all these factor, all the while not hindering the remaining students from progressing.93 Furthermore, they argue that it was not shown that the applicants were
treated differently based on their race but rather due to their insufficient command of Croatian, which counts as a pedagogical ground. As mentioned, States enjoy a wide margin of appreciation when it comes to methods to address learning difficulties. After determining a child lacks sufficient understanding of the language, it is up to the State authorities to address the situation. In the light of all these circumstances, the judges believed the placement of the Roma children in these classes had its base in a legitimate aim, and acceptable means were used in order to reach it. Thus, there had been an objective and reasonable justification, or in other words, no violation.
Although I can partly agree with the dissenting opinion, there are elements mentioned that I would question. While it might be acceptable to separate children due to their educational
88 Fredman (n 10), p. 379.
89 Oršuš and Others v. Croatia, Joint Party Dissenting Opinion of Judges Jungwiert, Vajić, Kovler, Gyulumyan,
Jaeger, Myjer, Berro-Lefèvre and Vučinić, § 3.
90 ibid. 91 ibid, § 5. 92 ibid, § 8. 93 ibid, § 9.
needs, the terms in which it happened in this current situation needs to be noted. The case of
Leyla Şahin v Turkey concerned the question of religion and preservation of the educational
institution’s secular nature. The purpose of the situation in Oršuš and Others is noteworthy and makes me question; no efforts were made regarding offering courses in Croatian as well as merging the groups together once their language proficiency improved, which raises questions regarding the real purpose of the segregation. How Roma children were affected as a result of these tests compared to non-Roma children is also noteworthy. The strained situation for Romas in Croatia overall is another important aspect to take into consideration. In their dissenting opinions, the judges argue that the Roma children did have interaction with other pupils in common facilities such as playgrounds, canteens, and social activities.94 Efforts had also been
made by the schools in question to educate all students about the Roma culture, such as hosting celebrations for the Roma Day. Although these initiatives in all aspects are important and valuable, education in itself is, as mentioned, a right much influenced by social rights. When it concerns young children, it is even more crucial to make sure decisions are made in a fair manner and that pupils from different backgrounds can learn together. If the intentions are fair, separation in this matter can be justified. In the case of Oršuš and Others, it does not appear the intentions were as pure as the State presents it. Regardless of the intention, the outcome had an unproportionable effect children of the Roma minority, making the decision of the Court the logical one. As stated in the case of Brown, separate but equal has no place in education. 3.3. Concluding remarks
As established, the main things the Court has put emphasis on while deciding the outcome of the cases in question can be pointed to three things. Firstly, it is of such high importance that racism is combatted that authorities are expected to take all measures possible in order handle these issues. Discrimination based on race is such an invidious violation and goes against the strive towards cultural diversity in the European Union.95 Secondly, anything that concern
children must be handled with care since it is of importance that their interests are kept and they are given the opportunity to thrive and develop both academically and socially. As seen in the dissenting opinions in case Oršuš and Others, a careful balancing of the interests of both minority and non-minority children is at times needed in order to ensure a fair outcome. Thirdly, education is such an important pillar of social rights that equality within the field must be among the focus areas. States may enjoy a certain margin of appreciation when it comes to this sector, but it is highly important that equal opportunities are offered when it concerns ethnic origin.
4. Room for improvement
4.1. Reports, results, and remarks between the years of 2009-2018
The cases discussed in detail here all saw their final judgments between the years of 2005-2010. Reports on country situations from ECRI are also no later than 2004. This following chapter will discuss the situation for the Romas in the field of education in more recent times.
In its fifth report on the Czech Republic, ECRI notes that since its fourth report on the State from 2009, positive developments have been noted overall when it comes to areas such as support for foreigners, combating extremism, and combating hateful violence towards certain
94 ibid, § 10.
