London, 19 February 2013
On 29 January 2013, the European Court of Human Rights (ECtHR) issued its judgment in Horváth and Kiss v Hungary, in which it ruled on the case of two Roma applicants who claimed that Hungary had violated their rights under Article 2 of Protocol No. 1 (right to education) read with Article 14 (prohibition of discrimination) of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The Court found that Hungary had indirectly discriminated against the applicants on the ground of their Roma origin in relation to their right to education in part because its procedures for identifying children with mental disabilities to be sent to remedial schools disproportionately impacted on the Roma in an unjustifiable way.
Both Mr Horváth and Mr Kiss were of Roma origin and born in the early 1990s. When they started elementary or primary school, the school authorities requested that they be evaluated by an expert panel to determine whether they should be educated in mainstream schools or should instead be sent to remedial schools which were intended to cater for children with mental disabilities and which had a more basic curriculum. In each case, the expert panel administered several tests and found that the applicants suffered from "mild mental disability", meaning that they should be educated in a remedial school under the Hungarian school system. Both applicants were placed in remedial schools, Mr Kiss in 2000 and Mr Horváth in 2001. Statistics revealed that Roma children were vastly overrepresented in remedial schools.
In the case of Mr Horváth, his parents were told that he would be sent to a remedial school even before he had been tested. Mr Kiss' parents protested against his being sent to remedial school. In neither case were the parents invited to attend the assessments or informed of their right to appeal the recommendation to send their children to remedial school. In 2005, both applicants were tested by independent experts who found that neither had a mental disability and that both were fit to attend mainstream schools, although they may have had certain behavioural problems or problems with their nervous systems.
The applicants brought a number of claims in Hungary against the authorities involved in the decision to send them to remedial school, with limited success. Hungary’s Regional Court found that the expert panel, the remedial school in question and the county council had breached the applicants’ rights to equal treatment and to education. The expert panel did not appeal but the school and council did. Their appeals were successful and both the Court of Appeal and the Supreme Court found that there had been no violation by them of the Constitution and Act No. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities. However, in its judgment of 11 August 2010, the Supreme Court said that making a ruling on the state’s failure to create a professional protocol for those making decisions as to a child’s education was outside! its competence and that the applicants may seek redress before the ECtHR. The applicants did so in 2010, claiming violations of Article 2 of Protocol No.1 read with Article 14 ECHR.
In finding a violation, the ECtHR restated its position that a measure or policy which is neutral on its face, but results in disproportionately prejudicial effects against a particular group, especially one which has been historically discriminated against, constitutes indirect discrimination unless there is an objective and reasonable justification. It asserted that this form of discrimination does not require any discriminatory intent on the part of the state. It held that when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence which the applicant is required to produce to show that a measure or practice is discriminatory. It is then for the state to prove otherwise.
In the case of the applicants, the ECtHR held that the Roma were an especially vulnerable group who had been subjected to a history of discrimination and that the statistics relating to their overrepresentation in remedial schools constituted prima facie evidence of indirect discrimination. Further, taking into account the past bias in the placement of Roma children in special schools, the court found that the state has a specific positive obligation under Article 2 of Protocol No. 1 to avoid the perpetuation of past discrimination in allegedly neutral practices.
The Court went on to state that:
(i) It could not take a position as to the acceptability of the state’s use of IQ scores as a means of testing, but it was required to determine whether the state had made good faith efforts to achieve non-discriminatory testing. As to that issue, the tests used did not provide for necessary safeguards against misdiagnosis which should follow from the state’s positive obligations, where there is a history of discrimination against ethnic minority children. The government had acknowledged that at least one aspect of the test was culturally biased and there were other tests which had been found by independent experts to be obsolete. In this context the Court considered that there was, at the very least, a danger of cultural bias.(ii) On the facts found by the domestic courts, the expert panel and the county council had not provided the necessary guarantees against misplacement. For example, the constant reorganisation of the social services and the failure to sufficiently individualise diagnoses were indicative of a failure to safeguard against misplacement.(iii) There was legal uncertainty as to the concepts of integrated education in the relevant period,
Accordingly, the Court held that the tests did not constitute objective and reasonable justification for the applicants' treatment and therefore the state had not been able to rebut the presumption that the measures which resulted in the applicants being placed in a remedial school were indirectly discriminatory.
The Court noted that “the identification of the appropriate education programme for mentally disabled and students with a learning disability, especially in the case of Roma children ... is not an easy one”, whilst noting that the state has discretion in this regard. However, it noted that whenever the state’s discretion is capable of interfering with a Convention right, “the procedural safeguards available to the individual will be especially material” in determining whether the state has remained within its margin of appreciation. In the case of the schooling of Roma applicants with allegedly mild mental disabilities, adequate safeguards were not in place.
The Equal Rights Trust welcomes the Court’s acknowledgment of the ongoing discrimination faced by the Roma in Hungary and its emphasis on the need for the state to adequately consider whether a procedure which is uniformly applied nevertheless indirectly impacts on a vulnerable group within society. In particular, ERT welcomes the Court’s acknowledgment that the state has specific positive obligations to avoid the perpetuation of the recognised widespread discrimination against the Roma with regard to their education “disguised in allegedly neutral tests”.
To read the Court's judgment in English click here
To read ERT's Case Summary click here
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