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Oršuš and others v. Croatia

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Court/Judicial body: Grand Chamber of the European Court of Human Rights
Date: 16 March 2010 CRC
Provisions: Article 28: Education Article 30: Children of minorities or indigenous populations
Other international provisions: European Convention for Human Rights (“ECHR”), Article 6 (Right to a fair trial) and Article 14 (Prohibition of discrimination) Protocol 1 of the ECHR, Article 2 (Right to education)
Domestic provisions: Croatian Constitution, Article 14: Equality before the law

Case summary

Background: The case was brought by fifteen Croatian nationals of Roma origins in relation to a number of disadvantages they have suffered as a result of being separated into a school class comprised of only Roma pupils.. The curriculum taught was allegedly reduced by up to 30% in comparison to the regular curriculum. The proportion of Roma children in the classes for lower grades of abilities allegedly varied from 33% to 75%. The applicants were told that they had to leave school at the age of 15 and submitted statistics showing that only 16% of Roma children aged 15 completed their primary education, compared with 91% of the general primary school population. The drop-out rate of Roma pupils was also 84%, which was 9.3 times higher than for the general population. The applicants brought actions to the municipal and constitutional courts of Croatia, complaining that the separation of Roma pupils amounted to racial discrimination and violated their rights to education and freedom from inhuman and degrading treatment. The applicants claimed this caused Roma children emotional and psychological harm. The municipal court did not find the Roma-only classes unlawful and accepted the government’s argument that Roma pupils were segregated as they were not fluent in Croatian. In 2002 the applicants took their case to the Constitutional Court which dismissed the complaint in 2007. The applicants complained to the European Court of Human Rights (ECtHR) that the excessive length  of time taken by the Constitutional Court to decide their case violated their right to a fair trial and that the segregation of Roma pupils violated the right to education and amounted to discrimination on the basis of their  race and origin. The Court found a  violation of the right to a fair trial under Article 6 but accepted Croatia’s  justification for Roma-only classes ruling there had been no violation of Article 2, Protocol 1  right to education or Article 14 protection against discrimination. The applicants appealed this finding to the Grand Chamber of the ECtHR.

Issue and resolution: Right to a fair trail. Right to education and discrimination. Whether there was a violation of Article 6 of the European Convention for Human Rights. The court held that the four year period that the Croatian Constitutional Court took to decide the applicants’ case was excessive. Whether there was a violation of the right to education under Art 2 of Protocol 1 and Article 14 ECHR prohibiting discrimination. The court held that the separation of Roma children was discriminatory. Despite the legitimate aim of ensuring Roma children received special attention to improve their understanding of Croatian, the actions of the State were disproportionate.

Court reasoning: The Court held the four years taken by the Constitutional Court to decide on the case had been excessively lengthy, a particular concern as the the right to education was at issue. This constituted a violation of the applicants Article 6 right to a fair trial as their case had not been heard within a reasonable time. The Court found that as a disadvantaged and vulnerable minority group the Roma required special protection and that this case required particular attention as the right to education is of paramount importance to children. The Court explained discrimination as treating persons in similar situations differently without an objective and reasonable justification. This does not prevent a State from treating groups differently to correct “factual inequalities” which is a permissible form of different treatment. States are able to decide whether and to what extent different treatment is justified but must show that measures taken are justified by a legitimate aim and that the means of achieving the aim are appropriate, necessary and proportionate. The Court noted  that the applicants attended regular primary schools and that the Roma-only classes took place within the same school building as other classes. The statistics presented also showed that it was not a general policy to automatically place Roma pupils in separate classes. Although Croatia argued the separation of Roma children was due to their inadequate understanding of Croatian, which pursued the legitimate aim of adapting the education system to the specific needs of the Roma, there was no evidence of proper testing and assessment of language ability or processes to assess improvement and move the Roma children to higher grade classes. While recognising  the efforts made by the Croatian authorities to ensure that Roma children receive schooling the Court considered that there were no adequate safeguards in place capable of ensuring proportionality between the means used and the legitimate aim pursued. The Court held there had been no objective and reasonable justification for the Roma-only classes, finding a violation of Article 2, Protocol 1 right education in conjunction with the protection against discrimination under Art 14 ECHR.
Dissenting opinion: The judgment on discrimination was passed with only a slim margin of nine votes to eight. The eight dissenting judges issued a joint opinion which stated that while they agreed with the key principles laid out in the judgment, they did not agree with the application of the principles and the conclusion drawn. The dissenting judges were satisfied that the alleged different treatment of the applicants was not based on their ethnic origin or other “suspect” grounds, but exclusively on their insufficient command of the Croatian language. In such circumstances a wide margin of appreciation is allowed to the Croatian authorities in employing methods of addressing the applicants’ learning difficulties. This means that the choice of means to address that problem lay with the Croatian authorities. The dissenting judges considered that the placement of the applicants in Roma-only classes at times during their primary education had a legitimate aim pursued by acceptable means for a limited period and there existed an objective and reasonable justification.  
Excerpt citing CRC and other relevant human rights E. Convention on the Rights of the Child 95. The relevant parts of Articles 28 and 30 of this Convention provide as follows. Article 28 “1. States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; … (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates…” Article 30 “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”

Notes: Read a summary of the related case D.H. and others v. The Czech Republic

Follow up: Human Rights Watch’s World Report 2016 published in January 2016 continues to note that Roma children continue to be de facto segregated in the education system. In 2014, the Committee on the Rights of the Child expressed concern on the continued segregation of Roma children in education and recommended their full integration into mainstream education.

CRIN comments: CRIN believes this decision this decision is consistent with CRC. Article 28 guarantees the right to education to children on the basis of equal opportunity and Article 2 places a duty on States to protect the rights in the Convention without discrimination of any kind. Citation: Application No. 15766/03 Link to Full Judgment: This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Related  European Convention for the Protection of Human Rights and Fundamental FreedomsPromotional Image:  Countries Croatia CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.