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D.H. and Others v. Czech Republic: a major set-back for the development of non-discrimination norms in Europe

Published online by Cambridge University Press:  06 March 2019

Morag Goodwin

Extract

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On 7 February 2006, a chamber of the European Court of Human Rights gave judgment in the much awaited ‘Ostrava case’, which challenged the placing of disproportionate numbers of Romani children in ‘special schools’ for the learning impaired in the Czech Republic. This practice, widespread across Central and Eastern Europe, amounts in effect to racial segregation and denies Romani children access to a standard of education comparable to their non-Romani peers. The Ostrava case, taking eight months to assemble and seven years to reach judgment day in Strasbourg, represented the centre-piece of the litigation strategy of the Romani rights movement. The decision of the Strasbourg Court to ignore the evidence of indirect racial discrimination by a 6-1 majority represents not only a setback for those working for the improvement of the situation of the Roma – widely acknowledged as the most disadvantaged, discriminated and marginalised group in Europe – but also for the crystallisation of non-discrimination norms in Europe.

Type
Developments
Information
German Law Journal , Volume 7 , Issue 4 , 01 April 2006 , pp. 421 - 431
Copyright
Copyright © 2006 by German Law Journal GbR 

References

1 D.H. and Others v. the Czech Republic, Application no. 57325/00, Judgment 7 February 2006, http://www.echr.coe.int/echr Google Scholar

2 Article 2(4) of Decree No. 127/1997 on specialised schools; this decree was repealed by Decree No. 73/2005, which came into force on 17 February 2005.Google Scholar

3 ‘The ERRC legal strategy to challenge racial segregation and discrimination in Czech schools’, available at http://www.errc.org/cikk.php?cikk=601 (last visited on 26 March 2006).Google Scholar

4 Anguelova v. Bulgaria, Application no. 38361/97, ECHR 2002-IV.Google Scholar

5 Case “relating to the certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (Belgian Linguistics case) A6, p.34, para. 10 (1968); these tests were repeated in, inter alia, Marckx v. Belgium, A31, p. 16, para. 33 (1979) and Rasmussen v. Denmark, A87, p. 14, para. 38 (1984), and Abdulaziz, Cabales and Balkandali v. UK, A42 (1985).Google Scholar

6 No other language groups (e.g. Vietnamese, Polish etc) suffered from the same disparity. Moreover, it would be wholly disproportionate to condemn children with poor knowledge of the Czech language to schools for the mentally impaired. See note 3.Google Scholar

7 According to the case presented, poor children of non-Romani origin are able to excel in the Czech school system. See note 3Google Scholar

8 Judgment of 11 June 2002, Application no. 36042/97, 2002-IV, para. 48.Google Scholar

9 401 IS 424. For the argument that the concept emerged in international law in the inter-bellum minorities cases before the P.C.I.J., see Christa Tobler, Indirect Discrimination (2005).Google Scholar

10 In this regard, see Article 2(2) of Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (the ‘Race Directive’) expressly prohibiting indirect discrimination, as well as Articles 1 of CERD and CEDAW, which prohibit both “the effect or purpose” of discrimination. [2000] O.J. L180/22.Google Scholar

11 The Convention on the Rights of the Child (1989) has the highest number of ratifications for any human rights treaty, with 192 states accepting the existence of rights of children separate from their parents’ ability to enforce them on their behalf.Google Scholar

12 Despite appearing to recognise the possible existence of indirect discrimination in the Belgian Linguistic case in 1968, the Court has yet to find a violation of Article 14 on the basis of disparate impact discrimination.Google Scholar

13 http://errc.org/Archivum_index.php. For a more detailed consideration of the legal strategy of the Romani movement, Morag Goodwin, White Knights On Chargers: Using the US Approach To Promote Roma Rights in Europe?, 5 German Law Journal 1431 (2005), at http://www.germanlawjournal.com/article.php?id=524.CrossRefGoogle Scholar

14 Brown et al. v. Board of Education of Topeka et al., 347 U.S. 493 (1954).Google Scholar

15 ERRC Press Release, European Court Fails to Find Czech Romani Children Victims of Racial Discrimination in Education, 8 February 2006, at http://www.errc.org/cikk.php?cikk=2378 (last visited on 26 March 2006).Google Scholar

16 Fourth periodic report of State parties, Addendum Czech Republic, 26 November 1999, CERD/C/372/Add.1, para. 134. See, ERRC, Stigmata: Segregated Schooling of Roma in Central and Eastern Europe, Budapest 2004; at http://www.errc.org/cikk.php?cikk=1892 (last visited on 26 March 2006).Google Scholar

17 See the Race Directive, note 7, but also Directive 2000/78 establishing a general framework for equal treatment in employment and occupation (the ‘Framework Directive’), [2000] O.J. L303/16; and Directive 2002/73/EC of the European Parliament and the Council amending Directive 76/207, [2002] O.J. L269/15.Google Scholar

18 For example, see Bilka C-170/84 [1986] ECR 1607, in which the ECJ required no finding of intent and accepted the use of statistics to establish that the exclusion of part-time workers from occupational pension schemes could not be explained by factors excluding discrimination on the grounds of sex.Google Scholar

19 The ECJ rejected in O'Flynn the UK government's contention that statistics were necessary to establish any case of indirect discrimination. According to the Luxembourg Court, “It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an effect.” O'Flynn C-237/94 [1996] ECR I-02617, para. 21.Google Scholar