Orsus v Croatia
Forum: European Court of Human Rights
INTERIGHTS’ role: Third party intervener
On 16 March 2010 the Grand Chamber of the European Court of Human Rights ruled that the Croatian authorities discriminated against 15 Roma school children on account of their ethnicity, in breach of Article 14 taken together with Article 2 of Protocol 1. The case concerned the segregation of Romani children in separate classes within certain primary schools in the Meðimurje County in Croatia supposedly on account of their lack of proficiency in the Croatian language.
In a very closely divided opinion, the European Court decided that in placing the applicants in separate classes, and also taking into account the racially-charged context in which this took place, there was a differential treatment for the purposes of Article 14, which shifted the burden of proof on the Government to show that this practice was justified, appropriate and necessary.
The Court held that in order to be compliant with the Convention, temporary placement of minority children in separate classes on the basis of linguistic differences was permissible only “if it served the purpose of bringing their command of the Croatian language up to an adequate level and then securing their immediate transfer to a mixed class”. As such, this practice had to be accompanied by appropriate safeguards. The Court then proceeded to examine in detail the various factors involved in the applicants’ placement in separate classes, such as the existence of a legal basis for this practice, the tests administered in order to assess the applicants’ language skills, the curriculum adopted in separate classes and the practice of monitoring the applicants’ progress in acquiring language skills. The Court concluded that no adequate safeguards were in place capable of “ensuring that a reasonable relationship of proportionality between the means used and the legitimate aim said to be pursued was achieved and maintained”.
Throughout the judgment the Court, in line with the arguments included in the third party intervention submitted by INTERIGHTS, scrutinised the extent to which the Croatian authorities undertook positive steps in order to compensate for the applicants’ linguistic and cultural differences. Thus for example, the Court noted the failure to include special language classes in the curriculum or the lack of “active and structured” involvement of social services in order to address the problems experienced by Roma children which led to high drop-out rates and poor school attendance. Furthermore, the Court noted with approval the practice adopted by Croatian authorities to provide for the possibility of further education for Roma children who failed to complete primary education by the age of fifteen, in the form of government-funded evening schools.
INTERIGHTS submitted a third party intervention highlighting the necessity for the Court to develop a comprehensive body of case law on the substantive aspects of the right to education. Drawing on international and comparative standards and caselaw, the intervention sought to provide the Court with assistance in clarifying the extent to which State Parties are entitled to segregate or exclude children of ethnic and/or linguistic minorities from mainstream education on the basis of linguistic or other cultural differences. In particular, the intervention elaborated the extent of positive obligations on State Parties to correct the disadvantages suffered by children of ethnic and/or linguistic minorities in order to provide access to an integrated education system for such children and to accommodate the cultural identity of such children within the learning environment of an integrated education system. Underpinning INTERIGHTS’ arguments is the principle that effective and practical alternatives exist to segregation in schools on the basis of linguistic and/or cultural differences which can be implemented.
Click here to read the Council of Europe Commissioner for Human Rights' report on Croatia and accompanying press release (June 2010) in which he underlined the pivotal role of education and called upon the authorities to comply fully with the judgment in this case by eliminating any tendency of segregation of Roma pupils.
INTERIGHTS contact: Constantin Cojocariu, Lawyer, Europe Programme, email firstname.lastname@example.org