EHRM, 13-11-2007, nr. 57325/00

On 15 June 1999 all the applicants apart from those numbered 1, 2, 10 and 12 in the Annex asked the Ostrava Education Authority (Školskýúřad) to reconsider, outside the formal appeal procedure (přezkoumání mimo odvolacířízení), the administrative decisions to place them in special schools. They argued that their intellectual capacity had not been reliably tested and that their representatives had not been adequately informed of the consequences of consenting to their placement in a special school. They therefore asked the Education Authority to revoke the impugned decisions, which they maintained did not comply with the statutory requirements and infringed their right to education without discrimination.

On 10 September 1999 the Education Authority informed the applicants that, as the impugned decisions complied with the legislation, the conditions for bringing proceedings outside the appeal procedure were not satisfied in their case.

On 15 June 1999 applicants nos. 1 to 12 in the Annex lodged a constitutional appeal in which they complained, inter alia, of de facto discrimination in the general functioning of the special education system. In that connection, they relied on, inter alia, Articles 3 and 14 of the Convention and Article 2 of Protocol No. 1. While acknowledging that they had not appealed against the decisions to place them in special schools, they alleged that they had not been sufficiently informed of the consequences of placement and argued (on the question of the exhaustion of remedies) that their case concerned continuing violations and issues that went far beyond their personal interests.

In their grounds of appeal, the applicants explained that they had been placed in special schools under a practice that had been established in order to implement the relevant statutory rules. In their submission, that practice had resulted in de facto racial segregation and discrimination that were reflected in the existence of two separately organised educational systems for members of different racial groups, namely special schools for the Roma and ‘ordinary’ primary schools for the majority of the population. That difference in treatment was not based on any objective and reasonable justification, amounted to degrading treatment and had deprived them of the right to education (as the curriculum followed in special schools was inferior and pupils in special schools were unable to return to primary school or to obtain a secondary education other than in a vocational training centre). Arguing that they had received an inadequate education and an affront to their dignity, the applicants asked the Constitutional Court (Ústavní soud) to find a violation of their rights, to quash the decisions to place them in special schools, to order the respondents (the special schools concerned, the Ostrava Education Authority and the Ministry of Education) to refrain from any further violation of their rights and to restore the status quo ante by offering them compensatory lessons.

In their written submissions to the Constitutional Court, the special schools concerned pointed out that all the applicants had been enrolled on the basis of a recommendation from an educational psychology centre and with the consent of their representatives. Furthermore, despite having been notified of the relevant decisions, none of the representatives had decided to appeal. According to the schools, the applicants' representatives had been informed of the differences between the special-school curriculum and the primary-school curriculum. Regular meetings of teaching staff were held to assess pupils (with a view to their possible transfer to primary school). They added that some of the applicants (nos. 5 to 11 in the Annex) had been advised that there was a possibility of their being placed in primary school.

The Education Authority pointed out in its written submissions that the special schools had their own legal personality, that the impugned decisions contained advice on the right of appeal and that the applicants had at no stage contacted the schools inspectorate.

The Ministry of Education denied any discrimination and noted a tendency on the part of the parents of Roma children to have a rather negative attitude to school work. It asserted that each placement in a special school was preceded by an assessment of the child's intellectual capacity and that parental consent was a decisive factor. It further noted that there were 18 educational assistants of Roma origin in schools in Ostrava.

In their final written submissions, the applicants pointed out

They also argued that the gaps in their education made a transfer to primary school impossible in practice and that social or cultural differences could not justify the alleged difference in treatment.

On 20 October 1999 the Constitutional Court dismissed the applicants' appeal, partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it. It nevertheless invited the competent authorities to give careful and constructive consideration to the applicants' proposals.

The testing of intellectual capacity in an educational psychology centre with the consent of the child's legal guardians was neither compulsory nor automatic. The recommendation for the child to sit the tests was generally made by teachers — either when the child first enrolled at the school or if difficulties were noted in its ordinary primary-school education — or by paediatricians.

According to the applicants, who cited experts in this field, the most commonly used tests appeared to be variants of the ‘Wechsler Intelligence Scale for Children’ (PDW and WISC III) and the ‘Stanford-Binet Intelligence test’. Citing various opinions, including those of teachers and psychologists and the head of the special-schools department at the Czech Ministry of Education in February 1999, the applicants submitted that the tests used were neither objective nor reliable, as they had been devised solely for Czech children, and had not recently been standardised or approved for use with Roma children. Moreover, no measures had been taken to enable Roma children to overcome their cultural and linguistic disadvantages in the tests. Nor had any instructions been given to restrict the latitude that was given in the administration of the tests and the interpretation of the results. The applicants also drew attention to a 2002 report in which the Czech schools inspectorate noted that children without any significant mental deficiencies were still being placed in special schools.

In the report submitted by the Czech Republic on 1 April 1999 pursuant to Article 25 § 1 of the Framework Convention for the Protection of National Minorities, it was noted that the psychological tests ‘are conceived for the majority population and do not take Romani specifics into consideration’.

The Advisory Committee on the Framework Convention noted in its first report on the Czech Republic, which was published on 25 January 2002, that while these schools were designed for mentally handicapped children, it appeared that many Roma children who were not mentally handicapped were placed in them owing to real or perceived language and cultural differences between Roma and the majority. The Committee stressed that ‘placing children in such special schools should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests’.

In its second report on the Czech Republic published on 26 October 2005 the Advisory Committee observed: ‘Tests and methods used to assess children's intellectual abilities upon school enrolment have already been revised with a view to ensuring that they are not misused to the detriment of Roma children’. However, it noted with concern that ‘revision of the psychological tests used in this context has not had a marked impact. According to unofficial estimates, Roma account for up to 70% of pupils in the [special] schools, and this — having regard to the percentage of Roma in the population — raises doubts concerning the tests' validity and the relevant methodology followed in practice’.

In its report on the Czech Republic published on 21 March 2000, the European Commission against Racism and Intolerance (ECRI) noted that channelling of Roma children to special schools was reported to be often quasi-automatic. According to ECRI, the poor results obtained by these children in the pre-school aptitude tests could be explained by the fact that in the Czech Republic most Roma children did not attend kindergarten education. ECRI therefore considered that the practice of channelling Roma/Gypsy children into special schools for the mentally-retarded should be fully examined, to ensure that any testing used was fair and that the true abilities of each child were properly evaluated.

In its next report on the Czech Republic, which was published in June 2004, ECRI noted that the test developed by the Czech Ministry of Education for assessing a child's mental level was not mandatory, and was only one of a battery of tools and methods recommended to the educational guidance centres.

In his final report on the Human Rights Situation of the Roma, Sinti and Travellers in Europe dated 15 February 2006, the Commissioner for Human Rights observed: ‘Roma children are frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin’.

According to the observations submitted by the International Step by Step Association, the Roma Education Fund and the European Early Childhood Research Association, countries in east central and south eastern Europe typically lacked national definitions of ‘disability’ (related to the placement of students in special schools) and used definitions in which some form of disability was connected to the socio-cultural background of the child, thus leaving the door to discriminatory practices open. Data on children with disabilities were drawn largely from administrative sources rather than being derived from a thorough assessment of the actual characteristics of the child. Thus, divisive practices and the use of a single test were common in the 1990s.

It is alleged in the observations that the assessment used to place Roma children in special schools in the Ostrava region ran contrary to effective assessment indicators that were well known by the mid 1990s, for example, those published in 1987 by the National Association for the Education of Young Children (USA). These indicators were now associated with the Global Alliance for the Education of Young Children, which included member organisations in Europe and, more particularly, the Czech Republic. Relevant indicators included: ethical principles to guide assessment practices; the use of assessment instruments for their intended purposes and in such a way as to meet professional quality criteria; assessments appropriate to the ages and other characteristics of the children being assessed; recognition of the developmental and educational significance of the subject-matter of the assessment; the use of assessment evidence to understand and improve learning; the gathering of assessment evidence from realistic settings and in situations that reflected children's actual performance; the use of multiple sources of evidence gathered over time for assessments; the constant linking of screening to follow up; limitations on the use of individually administered, norm-referenced tests; and adequate information for staff and families involved in the assessment process.

Thus, the assessment of Roma children in the Ostrava region did not take into account the language and culture of the children, or their prior learning experiences, or their unfamiliarity with the demands of the testing situation. Single rather than multiple sources of evidence were used. Testing was done in a single administration, not over time. Evidence was not obtained in realistic or authentic settings where children could demonstrate their skills. Undue emphasis was placed on individually administered, standardised tests normed on other populations.

According to studies cited in these observations (UNICEF, Innocenti Insight (2005); Save the Children (2000), ‘Denied a future: The right to education of Roma/Gypsy and Traveller children’; D.J. Losen and G. Orfield (2002), ‘Introduction: Racial inequity in special education’ (Cambridge, MA: Harvard Education Press)), disproportionately placing certain groups of students in special education resulted from an array of factors, including ‘unconscious racial bias on the part of school authorities, large resource inequalities, an unjustifiable reliance on IQ and other evaluation tools, educators' inappropriate responses to the pressures of high-stakes testing, and power differentials between minority parents and school officials’. Thus, school placement through psychological testing often reflected racial biases in the society concerned.

The respondent Government observed that the unification of European norms used by psychologists was currently under way and that the State authorities had taken all reasonable steps to ensure that the psychological tests were administered by appropriately qualified experts with university degrees applying the latest professional and ethical standards in their specialised field. In addition, research conducted in 1997 by Czech experts at the request of the Ministry of Education showed that Roma children had attained in a standard test of intelligence (WISC III) only insignificantly lower results than comparable non-Roma Czech children (one point on the IQ scale).

Article 7 of Decree no. 127/1997 on specialised schools made the consent of the legal guardians a condition sine qua non for the child's placement in a special school. The applicants noted that the Czech legislation did not require the consent to be in writing. Nor did information on the education provided by special schools or the consequences of the child's placement in a special school have to be provided beforehand.

In its report on the Czech Republic published in March 2000, ECRI observed that Roma parents often favoured the channelling of Roma children to special schools, partly to avoid abuse from non-Roma children in ordinary schools and isolation of the child from other neighbourhood Roma children, and partly owing to a relatively low level of interest in education.

In its report on the Czech Republic published in June 2004, ECRI noted that when deciding whether or not to give their consent, parents of Roma children ‘continued to lack information concerning the long-term negative consequences of sending their children to such schools, which were often presented to parents as an opportunity for their children to receive specialised attention and be with other Roma children’.

According to information obtained by the FIDH from its Czech affiliate, many schools in the Czech Republic are reluctant to accept Roma children. That reluctance is explained by the reaction of the parents of non-Roma children, which, in numerous cases, has been to remove their children from integrated schools because the parents fear that the level of the school will fall following the arrival of Roma children or, quite simply, because of prejudice against the Roma. It is in that context that Roma children undergo tests designed to ascertain their capacity to follow the ordinary curriculum, following which parents of Roma children are encouraged to place their children in special schools. The parents' choice to place their children in special schools, where that is what they choose to do, is consistent with the school authorities' desire not to admit so many Roma children that their arrival might induce the parents of non-Roma children to remove their own children from the school.

Pupils in special schools follow a special curriculum supposedly adapted to their intellectual capacity. After completing their course of compulsory education in this type of school, they may elect to continue their studies in vocational training centres or, since 18 February 2000, in other forms of secondary school (provided they are able to establish during the admissions procedure that they satisfy the entrance requirements for their chosen course).

Further, Article 6 § 2 of Decree no. 127/1997 stipulated that if during the pupil's school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability, the head teacher of the school attended by the child or pupil was required, after an interview with the pupil's guardian, to recommend the pupil's placement in another specialised school or in an ordinary school.

In his final report on the Human Rights Situation of the Roma, Sinti and Travellers in Europe dated 15 February 2006, the Commissioner for Human Rights noted: ‘Being subjected to special schools or classes often means that these children follow a curriculum inferior to those of mainstream classes, which diminishes their opportunities for further education and for finding employment in the future. The automatic placement of Roma children in classes for children with special needs is likely to increase the stigma by labelling the Roma children as less intelligent and less capable. At the same time, segregated education denies both the Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excludes Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation’.

The Advisory Committee on the Framework Convention for the Protection of National Minorities noted in its second report on the Czech Republic, which was published on 26 October 2005, that placement in a special school ‘makes it more difficult for Roma children to gain access to other levels of education, thus reducing their chances of integrating in the society. Although legislation no longer prevents children from advancing from ‘special’ to regular secondary schools, the level of education offered by ‘special’ schools generally does not make it possible to cope with the requirements of secondary schools, with the result that most drop out of the system’.

According to the observations submitted by the International Step by Step Association, the Roma Education Fund and the European Early Childhood Research Association, the placement of children in segregated special schools was an example of a very early ‘tracking’ of students, in this case by assigning children perceived to be of ‘low ability’ or ‘low potential’ to special schools from an early age. Such practices increased educational inequity as they had especially negative effects on the achievement levels of disadvantaged children (see, inter alia, the communication to the Council and the European Parliament on ‘efficiency and equity in the European education and training systems’ (COM/2006/0481, 8 September 2006)). The longer-term consequences of ‘tracking’ included pupils being channelled towards less prestigious forms of education and training and pupils dropping out of school early. Tracking could thus help create a social construction of failure.

In their observations to the Court, the organisations Minority Rights Group International, European Network against Racism and European Roma Information Office noted that children in special schools followed a simplified curriculum that was considered appropriate for their lower level of development. Thus, in the Czech Republic, children in special schools were not expected to know the alphabet or numbers up to 10 until the third or fourth school-year, while their counterparts in regular schools acquired that knowledge in the first year.

The recommendation provides as follows:

The relevant sections of the Appendix to Recommendation No. R (2000) 4 read as follows:

The Parliamentary Assembly made, inter alia, the following general observations:

As far as education is concerned, the Recommendation states:

This recommendation states, inter alia:

The relevant sections of this recommendation state:

The following definitions are used for the purposes of this Recommendation:

In the explanatory memorandum to this recommendation, it is noted (point 8) that the definitions of direct and indirect racial discrimination contained in paragraph 1 b) and c) of the Recommendation draw inspiration from those contained in Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation and on the case-law of the European Court of Human Rights.

In the section of the report dealing with the policy aspects of education and training, ECRI stated that public opinion appeared sometimes to be rather negative towards certain groups, especially the Roma/Gypsy community, and suggested that further measures should be taken to raise public awareness of the issues of racism and intolerance and to improve tolerance towards all groups in society. It added that special measures should be taken as regards the education and training of the members of minority groups, particularly members of the Roma/Gypsy community.

In this report, ECRI stated that the disadvantages and effective discrimination faced by members of the Roma/Gypsy community in the field of education was of particularly serious concern. It was noted that Roma/Gypsy children were vastly over-represented in special schools and that their channelling to special schools was reported to be often quasi-automatic. Roma/Gypsy parents often favoured this solution, partly to avoid abuse from non-Roma/Gypsy children in ordinary schools and isolation of the child from other neighbourhood Roma/Gypsy children, and partly owing to a relatively low level of interest in education. Most Roma/Gypsy children were consequently relegated to educational facilities designed for other purposes, offering little opportunity for skills training or educational preparation and therefore very limited opportunity for further study or employment. Participation of members of the Roma/Gypsy community in education beyond the primary school level was extremely rare.

ECRI therefore considered that the practice of channelling Roma/Gypsy children into special schools for the mentally-retarded should be fully examined, to ensure that any testing used was fair and that the true abilities of each child were properly evaluated. ECRI also considered that it was fundamental that Roma/Gypsy parents should be made aware of the need for their children to attend regular education. In general, ECRI considered that there was a need for closer involvement of members of the Roma/Gypsy community in matters concerning education. As a start, the authorities needed to ensure that Roma/Gypsy parents were kept fully informed of measures taken and were encouraged to participate in educational decisions affecting their children.

With regard to the access of Roma children to education, ECRI said in this report that it was concerned that Roma children continued to be sent to special schools which, besides perpetuating their segregation from mainstream society, severely disadvantaged them for the rest of their lives. The standardised test developed by the Czech Ministry of Education for assessing a child's mental level was not mandatory and was only one of a battery of tools and methods recommended to the psychological counselling centres. As to the other element required in order to send a child to a special school — the consent of the child's legal guardian — ECRI observed that parents making such decisions continued to lack information concerning the long-term negative consequences of sending their children to such schools, which were often presented to parents as an opportunity for their children to receive specialised help and be with other Roma children. ECRI also said that it had received reports of Roma parents being turned away from ordinary schools.

ECRI also noted that the Schools Act had entered into force in January 2000 and provided the opportunity for pupils from special schools to apply for admission to secondary schools. According to various sources, that remained largely a theoretical possibility as special schools did not provide children with the knowledge required to follow the secondary-school curriculum. There were no measures in place to provide additional education to pupils who had gone through the special school system to bring them to a level where they would be adequately prepared for ordinary secondary schools.

ECRI had received very positive feedback concerning the success of ‘zero grade courses’ (preparatory classes) at pre-school level in increasing the number of Roma children who attended ordinary schools. It expressed its concern, however, over a new trend to maintain the system of segregated education in a new form — this involved special classes in mainstream schools. In that connection, a number of concerned actors were worried that the proposed new Schools Act created the possibility for even further separation of Roma through the introduction of a new category of special programmes for the ‘socially disadvantaged’.

Lastly, ECRI noted that despite initiatives taken by the Ministry of Education (classroom assistants, training programmes for teachers, revision of the primary school curriculum), the problem of low levels of Roma participation in secondary and higher education that had been described by ECRI in its second report persisted.

The report stated that the Government had adopted measures in the education sphere that were focused on providing suitable conditions especially for children from socially and culturally disadvantaged environments, in particular the Roma community, by opening preparatory classes in elementary and special schools. It was noted that ‘Romany children with average or above-average intellect are often placed in such schools on the basis of results of psychological tests (this happens always with the consent of the parents). These tests are conceived for the majority population and do not take Romany specifics into consideration. Work is being done on restructuring these tests’. In some special schools Roma pupils made up between 80% and 90% of the total number of pupils.

The Czech Republic accepted that the Roma were particularly exposed to discrimination and social exclusion and said that it was preparing to introduce comprehensive anti-discrimination tools associated with the implementation of the Council Directive implementing the principle of equal treatment. New legislation was due to be enacted in 2004 (the Act, Law no. 561/2004, was passed on 24 September 2004 and entered into force on 1 January 2005).

In the field of Roma education, the report said that the State had taken various measures of affirmative action in order to radically change the present situation of Roma children. The Government regarded the practice of referring large numbers of Roma children to special schools as untenable. The need for affirmative action was due not only to the socio-cultural handicap of Roma children, but also to the nature of the whole education system and its inability to sufficiently reflect cultural differences. The proposed new Schools Act would bring changes to the special education system by transforming ‘special schools’ into ‘special primary schools’, thus providing the children targeted assistance in overcoming their socio-cultural handicap. These included preparatory classes, individual study programmes for children in special schools, measures concerning pre-school education, an expanded role for assistants from the Roma community and specialised teacher-training programmes. As one of the main problems encountered by Roma pupils was their poor command of the Czech language, the Ministry of Education considered that the best solution (and the only realistic one) would be to provide preparatory classes at the pre-school stage for children from disadvantaged socio-cultural backgrounds.

The report also cited a number of projects and programmes that had been implemented nationally in this sphere (‘Support for Roma integration’, ‘Programme for Roma integration/Multicultural education reform’, and ‘Reintegrating Roma special school pupils in primary schools’).

The Advisory Committee noted that while the special schools were designed for mentally handicapped children, it appeared that many Roma children who were not mentally handicapped were placed in these schools due to real or perceived language and cultural differences between Roma and the majority. It considered that this practice was not compatible with the Framework Convention and stressed that placing children in such schools should take place only when absolutely necessary and always on the basis of consistent, objective and comprehensive tests.

The special schools had led to a high level of separation of Roma pupils from others and to a low level of educational skills in the Roma community. This was recognised by the Czech authorities. Both governmental and civil society actors agreed on the need for a major reform. There was however disagreement about the precise nature of the reform to be carried out, the amount of resources to be made available and the speed with which reforms were being implemented. The Advisory Committee was of the opinion that the Czech authorities ought to develop the reform, in consultation with the persons concerned, so as to ensure equal opportunities for access to schools for Roma children and equal rights to an ordinary education, in accordance with the principles set out in Committee of Ministers Recommendation No. (2000) 4 on the education of Roma/Gypsy children in Europe.

The Advisory Committee noted with approval the initiatives that had been taken to establish so-called zero-classes, allowing the preparation of Roma children for basic school education, inter alia, by improving their Czech language skills, and encouraged the authorities to make these facilities more broadly available. It also considered the creation of posts of Roma pedagogical advisors in schools, a civil society initiative, to be a most positive step. The Advisory Committee encouraged the State authorities in their efforts to ensure the increase and development of such posts. A further crucial objective was to ensure a much higher number of Roma children had access to and successfully completed secondary education.

In this opinion, the Advisory Committee noted that the authorities were genuinely committed to improving the educational situation of Roma children, and were trying, in various ways, to realise this aim in practice. In that connection, it noted that it was too early to determine whether the revised educational system introduced by the new Schools Act (Law no. 561/2004) would substantially change the existing situation of over-representation of Roma children in special schools or special classes.

The Advisory Committee noted that the authorities were paying special attention to the unjustified placement of Roma children in special schools. Tests and methods used to assess children's intellectual abilities upon school enrolment had already been revised with a view to ensuring that they were not misused to the detriment of Roma children. Special educational programmes had been launched to help Roma children overcome their problems. These included waiving fees for the last year of pre-school education, relaxing the rules on minimum class sizes, more individualised education, appointing educational assistants (mostly Roma), as well as producing methodological handbooks and guidelines for teachers working with Roma children. Preparatory pre-school classes had also been organised for Roma children, and had worked well, although on a fairly limited scale. To accommodate all the children concerned, these measures needed to be applied more widely. The Advisory Committee also took note of the special support programme for Roma access to secondary and higher education, and of the efforts that had been made to build up a network of qualified Roma teachers and educational assistants.

The Advisory Committee noted, however, that although constant monitoring and evaluation of the school situation of Roma children was one of the Government's priorities, the State Report said little about the extent to which they were currently integrated in schools, or the effectiveness and impact of the many measures that had been taken for them. It noted with concern that the measures had produced few improvements and that local authorities did not systematically implement the Government's school support scheme and did not always have the determination needed to act effectively in this field.

The Advisory Committee noted with concern that, according to non-governmental sources, a considerable number of Roma children were still being placed in special schools at a very early age, and that revision of the psychological tests used in this context had not had a marked impact. According to unofficial estimates, Roma accounted for up to 70% of pupils in these schools, and this — having regard to the percentage of Roma in the population — raised doubts concerning the tests' validity and the methodology followed. This situation was made all the more disturbing by the fact that it also made it more difficult for Roma children to gain access to other levels of education, thus reducing their chances of integrating in society. Although legislation no longer prevented children from advancing from special to ordinary secondary schools, the level of education offered by special schools generally did not make it possible to cope with the requirements of secondary schools, with the result that most dropped out of the system. Although estimates of the number of Roma children who remained outside the school system varied, those who did attend school rarely advanced beyond primary school.

In addition, the Advisory Committee noted that, in spite of the awareness-raising initiatives taken by the Ministry of Education, many of the Roma children who attended ordinary schools were isolated by other children and by teaching staff, or even placed in separate classes. At the same time, it was recognised that in some schools Roma children were the largest pupil-group simply because the schools concerned were located near the places where Roma resided compactly. According to other sources, material conditions in some of the schools they attended were precarious and the teaching they received was still, in most cases, insufficiently adapted to their situation. It was important to ensure that these schools, too, provided quality education.

According to the Advisory Committee priority had to go to placing Roma children in ordinary schools, supporting and promoting preparatory classes and also to educational assistants. Recruiting Roma teaching staff, and making all education staff aware of the specific situation of Roma children also needed to receive increased attention. An active involvement on the part of the parents, in particular with regard to the implementation of the new Schools Act, also needed to be promoted as a condition sine qua non for the overall improvement of the educational situation of the Roma. Lastly, more determined action was needed to combat isolation of Roma children in both ordinary and special schools. A clearer approach, coupled with instructions and immediate action on all levels, was needed to put an end to unjustified placement of these children in special schools designed for children with mental disabilities. Effective monitoring measures, particularly designed to eliminate undue placement of children in such schools, had to be one of the authorities' constant priorities.

In the third section of the report, which concerns discrimination in education, the Commissioner noted that the fact that a significant number of Roma children did not have access to education of a similar standard enjoyed by other children was in part a result of discriminatory practices and prejudices. In that connection, he noted that segregation in education was a common feature in many Council of Europe member States. In some countries there were segregated schools in segregated settlements, in others special classes for Roma children in ordinary schools or a clear over-representation of Roma children in classes for children with special needs. Roma children were frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin. Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes, which diminished their opportunities for further education and for finding employment in the future. The automatic placement of Roma children in classes for children with special needs was likely to increase the stigma by labelling the Roma children as less intelligent and less capable. At the same time, segregated education denied both the Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excluded Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation.

In the Czech Republic, the Commissioner was told that the young members of the Roma/Gypsy community were drastically over-represented in ‘special’ schools and classes for children with a slight mental disability. At the same time he noted that the authorities had introduced Roma assistant teachers in ordinary classes and set up preliminary classes and that these initiatives had had promising results, though only on a small scale due to the lack of adequate resources. In particular, preparatory classes for socially disadvantaged children had been central in efforts to overcome excessive attendance of Roma children in special schools. The Czech authorities deemed that preparatory schools attached to nursery schools had been particularly successful in easing the integration of Roma children in ordinary schools. In 2004 the Czech Republic also had 332 teacher's assistants who attended the special needs of Roma pupils.

It was also noted that special classes or special curricula for the Roma had been introduced with good intentions, for the purposes of overcoming language barriers or remedying the lack of pre-school attendance of Roma children. Evidently, it was necessary to respond to such challenges, but segregation or systematic placement of Roma children in classes which followed a simplified or a special Romani-language curriculum while isolating them from other pupils was clearly a distorted response. Instead of segregation, significant emphasis had to be placed on measures such as pre-school and in-school educational and linguistic support as well as the provision of school assistants to work alongside teachers. In certain communities, it was crucial to raise the awareness of Roma parents, who themselves might not have had the possibility to attend school, of the necessity and benefits of adequate education for their children.

In conclusion, the Commissioner made a number of recommendations related to education. Where segregated education still existed in one form or another, it had to be replaced by ordinary integrated education and, where appropriate, banned through legislation. Adequate resources had to be made available for the provision of pre-school education, language training and school assistant training in order to ensure the success of desegregation efforts. Adequate assessment had to be made before children were placed in special classes, in order to ensure that the sole criterion in the placement was the objective needs of the child, not his or her ethnicity.

The applicants submitted that the restrictive interpretation the Chamber had given to the notion of discrimination was incompatible not only with the aim of the Convention but also with the case-law of the Court and of other jurisdictions in Europe and beyond.

They firstly asked the Grand Chamber to correct the obscure and contradictory test the Chamber had used for deciding whether there had been discrimination. They noted that, while reaffirming the established principle that if a policy or general measure had disproportionately prejudicial effects on a group of people, the possibility of its being considered discriminatory could not be ruled out even if it was not specifically aimed or directed at that group, the Chamber had nevertheless departed from the Court's previous case-law (Thlimmenos v. Greece[GC], no. 34369/97, § 44, ECHR 2000-IV; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and Nachova and Others v. Bulgaria[GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005-…) by erroneously requiring the applicants to prove discriminatory intent on the part of the Czech authorities. In the applicants' submission, such a requirement was unrealistic and illogical as the question whether or not special schools were designed to segregate along ethnic lines was irrelevant since that was indisputably the effect they had in practice. The reality was that well-intentioned actors often engaged in discriminatory practices through ignorance, neglect or inertia.

The applicants observed in particular that in explaining why it had refused to shift the burden of proof in its Nachova and Others v. Bulgaria judgment ([GC], cited above, § 157) the Court had been careful to distinguish between racially-motivated violent crime and non-violent acts of racial discrimination in, for example, employment or the provision of services. In their submission, racial discrimination in access to education fell precisely in the latter category of discriminatory acts which could be proved in the absence of intent. More recently, the Court had ruled in the Zarb Adami v. Malta case (no. 17209/02, §§ 75 and 76, ECHR 2006-…) that a difference in treatment did not need to be set forth in legislative text in order to breach Article 14 and that a ‘well-established practice’ or ‘de facto situation’ could also give rise to discrimination. As, in the instant case, the applicants considered that they had indisputably succeeded in establishing the existence of a disproportionate impact, the burden of proof had to shift to the Government to prove that the applicants' ethnic origin had had no bearing on the impugned decisions and that sufficient safeguards against discrimination were in place.

In that connection, the applicants noted that in its General Policy Recommendation No. 7, ECRI had invited the States to prohibit both direct discrimination and indirect discrimination, with neither concept requiring proof of discriminatory intent. A clear majority of the member States of the Council of Europe had already expressly prohibited discrimination in sections of their national legislation without requiring proof of such intent and this was reflected in the judicial practice of those States. The applicants referred in this context to, inter alia, the decision of the House of Lords in the case of Regina v. Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others (see paragraph 105 above) and to the jurisprudence of the Court of Justice of the European Communities (CJEC). Lastly, they noted that indirect discrimination was also prohibited under international law, including the International Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination.

Accordingly, in view of the vital importance of Article 14 protection and the need to make it effective, the applicants considered that it would be helpful for the Court to clarify the rules it applied in such situations to ensure, inter alia, that the principle of non-discrimination was interpreted and applied consistently by the two European courts. For this reason, the applicants asked the Grand Chamber to give a clear ruling that intent was not necessary to prove discrimination under Article 14, except in cases — such as, for example, of racially motivated violence — where it was already an element of the underlying offence.

In the instant case, the applicants did not claim that the competent authorities had at the relevant time harboured invidiously racist attitudes towards Roma, or that they had intended to discriminate against Roma, or even that they had failed to take positive measures. All the applicants needed to prove — and, in their submission, had proved — was that the authorities had subjected the applicants to differential adverse treatment in comparison with similarly situated non-Roma, without objective and reasonable justification. The question of a common European standard that had been raised by the Government was, in the applicants' view, more of a political issue and the existence or otherwise of such a standard was of no relevance as the principle of equality of treatment was a binding rule of international law.

Similarly, the applicants asked the Grand Chamber to provide guidance concerning the kinds of proof, including but not limited to statistical evidence, which might be relevant to a claim of a violation of Article 14. They noted that the Chamber had discounted the overwhelming statistical evidence they had adduced, without checking whether or not it was accurate, despite the fact that it had been corroborated by independent specialised intergovernmental bodies (ECRI, the Committee on the Elimination of Racial Discrimination, and the Advisory Committee on the Framework Convention for the Protection of National Minorities) and by the Government's own admission (see paragraphs 41 and 66 above). According to this data, although Roma represented only 5% of all primary school pupils at the time the application was lodged, they made up more than 50% of the population of special schools. Whereas fewer than 2% of non-Roma pupils in Ostrava were assigned to special schools, over 50% of Roma children were sent to such schools. Overall, a Roma child was more than 27 times more likely than a similarly situated non-Roma child to be assigned to a special school.

In the applicants' view, these figures strongly suggested that, whether through conscious design or reprehensible neglect, race or ethnicity had infected the process of school assignment to a substantial — perhaps determining — extent. The presumption that they, like other Roma children in the city of Ostrava, had been the victims of discrimination on the grounds of ethnic origin had never been rebutted. It was undisputed that as a result of their assignment to special schools the applicants had received a substantially inferior education as compared with non-Roma children and that this had effectively deprived them of the opportunity to pursue a secondary education other than in a vocational training centre.

In this context, they argued that both in Europe and beyond statistical data was often used in cases which, as here, concerned discriminatory effect, as sometimes it was the only means of proving indirect discrimination. Statistical data was accepted as a means of proof of discrimination by the bodies responsible for supervising the United Nations treaties and by the Court of Justice of the European Communities. Council Directive 2000/43/EC expressly provided that indirect discrimination could be established by any means ‘including on the basis of statistical evidence’.

With respect to the Convention institutions, the applicants noted that, in finding racial discrimination in the case of East African Asians v. the United Kingdom (nos. 4403/70-4530/70, Commission report of 14 December 1973, Decisions and Reports 78-B, p. 5), the Commission took into account the surrounding circumstances including statistical data on the disproportionate effect the legislation had on British citizens of Asian origin. Recently, the Court had indicated in its decision in the case of Hoogendijk v. the Netherlands (cited above) that while statistics alone were not sufficient to prove discrimination, they could — particularly where they were undisputed — amount to prima facie evidence requiring the Government to provide an objective explanation of the differential treatment. Further, in its decision in the case of Zarb Adami v. Malta (cited above), the Court had relied, inter alia, on statistical evidence of disproportionate effect.

The applicants added that it would be helpful for the Grand Chamber to clarify the Court's case-law by determining whether there was an objective and reasonable justification for the purposes of Article 14 for the difference in treatment in the present case and specifying the conclusions that should be drawn in the absence of a satisfactory explanation. Referring to, inter alia, the judgments in the cases of Timishev v. Russia (nos. 55762/00 and 55974/00, § 56, ECHR 2005-…) and Moldovan v. Romania (no. 2) (nos. 41138/98 and 64320/01, § 140, ECHR 2005-… (extracts)), they stated that where an applicant had established a difference in treatment the onus was on the respondent government to prove that it was justified. In the absence of a racially neutral explanation, it was legitimate to conclude that the difference in treatment was based on racial grounds. In the applicants' submission, neither an inadequate command of the Czech language, nor poverty nor a different socio-economic status could constitute an objective and reasonable justification in their case. They denied that the disproportionately large number of Roma children in special schools could be explained by the results of intellectual capacity tests or justified by parental consent (see also paragraphs 141 and 142 below).

In view of the importance of the fight against racial and ethnic discrimination that had constantly been reaffirmed by the Strasbourg institutions, the applicants considered that the Grand Chamber should state in clear terms that the States' ‘margin of appreciation’ could not serve to justify segregation in education. The approach adopted by the Chamber, which left an unlimited margin of appreciation to the Czech State, was unjustified in view of the serious allegations of racial and ethnic discrimination in the instant case and was inconsistent with the Court's case-law. The present case warranted all the more the Court's attention in that it concerned one of the most important substantive rights, namely the right to education.

The applicants further argued that the Chamber had misinterpreted crucial evidence and drawn inappropriate conclusions on two decisive issues, namely parental consent and the reliability of the psychological tests.

There were no uniform rules at the material time governing the manner in which the tests used by the educational psychology centres were administered and the results interpreted, so that much had been left to the discretion of the psychologists and there had been considerable scope for racial prejudice and cultural insensitivity. Further, the tests which they and other Roma children had been forced to sit were scientifically flawed and educationally unsound. The documentary evidence showed that a number of the applicants had been placed in special schools for reasons other than intellectual deficiencies (such as absenteeism, bad behaviour, and even misconduct on the part of the parents). The Czech Government had themselves acknowledged the discriminatory effect of the tests (see paragraph 66 above). They had also admitted in their observations on the present case that one of the applicants had been placed in a special school despite possessing good verbal-expression skills.

Nor, in the applicants' submission, could the discriminatory treatment to which they had been subjected be justified by their parents' consent to their placement in the special schools. Governments were legally bound to protect the higher interest of the child and in particular the equal right of all children to education. Neither parental conduct nor parental choice could deprive them of that right.

The credibility of the ‘consent’ allegedly given by the parents of several of the applicants had been called into question by inconsistencies in the school records that raised doubts as to whether they had indeed agreed. In any event, even supposing that consent had been given by all the parents, it had no legal value as the parents concerned had never been properly informed of their right to withhold their consent, of alternatives to placement in a special school or of the risks and consequences of such a placement. The procedure was largely formal: the parents were given a pre-completed form and the results of the psychological tests, results they believed they had no right to contest. As to the alleged right subsequently to request a transfer to an ordinary school, the applicants pointed out that from their very first year at school they had received a substantially inferior education that made it impossible for them subsequently to meet the requirements of the ordinary schools.

Moreover, it was unrealistic to consider the issue of consent without taking into account the history of Roma segregation in education and the absence of adequate information on the choices available to Roma parents. Referring to the view that had been expressed by the Court (in Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171-A, § 66) that a waiver may be lawful for certain rights but not for others and that it must not run counter to any important public interest, the applicants submitted that there could be no waiver of the child's right not to be racially discriminated against in education.

The instant case raised ‘a serious issue of general importance’, namely whether European governments were capable of coping with increasing racial and ethnic diversity and of protecting vulnerable minorities. In that connection, the most important issue was that of equality of opportunity in education as discrimination against Roma in that sphere persisted in all the member States of the Council of Europe. Putting an end to discrimination at school would enable Roma to enjoy equality of treatment generally.

The racial segregation of Roma children in Czech schools had not materially changed since the date the application was filed. The applicants' own futures and lack of prospects revealed the harm that their discriminatory placement in special schools had caused. Thus, in May 2006 eight of the applicants were continuing their education in a special school while a further six who had completed special school found themselves unemployed. Of the four applicants who had been allowed to attend ordinary primary school after passing the aptitude tests, two were still at school, one was unemployed and the fourth was enrolled in a vocational secondary school. The applicants considered that it was already clear that none of them would receive a general secondary school education, still less a university education.

Finally, the applicants pointed out that a new Schools Act had been passed in late 2004, which had purported to end the special school system. The new legislation thus acknowledged that the very existence of schools deemed ‘special’ imposed a badge of inferiority on those assigned there. In reality, however, the new law had not brought about changes in practice as it had merely altered the criteria on which educational programmes were based. Extensive research carried out by the European Roma Rights Centre in 2005 and 2006 showed that in many cases special schools had simply been renamed ‘remedial schools’ or ‘practical schools’ without any substantial change in the composition of their teaching staff or the content of their curriculum.

The Government stated that the case raised complex issues concerning the social problem of the position of Roma in contemporary society. Although the Roma ostensibly enjoyed the same rights as other citizens, in reality their prospects were limited by both objective and subjective factors. There could be no improvement in their situation without the involvement and commitment of all members of the Roma community. When they attempted to eliminate these inequalities, member States were confronted with numerous political, social, economic and technical problems which could not be confined to the question of respect for fundamental rights. It was for this reason that the courts, including the European Court of Human Rights, had to exercise a degree of restraint when examining measures adopted in this field and confine themselves to deciding whether or not the competent authorities had overstepped their margin of appreciation.

Referring to their previous written and oral observations, the Government reiterated that race, colour or association with a national minority had not played a determining role in the applicants' education. There was no specific evidence of any difference in treatment of the applicants on the basis of those grounds. The applicants' school files showed beyond doubt that their placement in special schools was not based on their ethnic origin, but on the results of psychological tests carried out at the educational psychology centres. Since the applicants had been placed in special schools on account of their specific educational needs resulting essentially from their intellectual capacity and, since the criteria, the process by which the criteria were applied and the system of special schools were all racially neutral, as the Chamber had confirmed in its judgment, it was not possible to speak of overt or direct discrimination in the instant case.

The Government next turned to the applicants' argument that the instant case was one of indirect discrimination which, in some instances, could only be established with the aid of statistics. They contended that the case of Zarb Adami v. Malta (cited above), in which the Court had relied extensively on statistical evidence submitted by the parties, was not comparable to the instant case. Firstly, Zarb Adami was far less complex. Secondly, the statistical disparities found in that case between the number of men and women called to perform jury service were the result of a decision by the State, whereas the statistics relied on by the applicants in the instant case reflected first and foremost the parents' wishes for their children to attend special school, not any act or omission on the part of the State. Had the parents not expressed such a wish (by giving their consent) the children would not have been placed in a special school.

Further, the statistical information that had been submitted in the instant case by the applicants was not sufficiently conclusive as the data had been furnished by the head teachers of the schools and therefore only reflected their subjective opinions. There was no official information on the ethnic origin of the pupils. The Government further considered that the statistics had no informative value without an evaluation of the socio-cultural background of the Roma, their family situation and their attitude towards education. They pointed out in that connection that the Ostrava region had one of the largest Roma populations in the Czech Republic.

As to the comparative studies on countries from central and eastern Europe and beyond cited in the observations of the third-party interveners, the Government did not consider that there was any relevant link between those statistics and the substantive issues in the case to hand. In their submission, those studies tended to confirm that creating an education system optimised for Roma children was an extremely complex task.

Nevertheless, even assuming that the data submitted by the applicants was reliable and that the State could be considered responsible for the situation, that did not, in the Government's submission, amount to indirect discrimination that was incompatible with the Convention. The impugned measure was consistent with the principle of non-discrimination as it pursued a legitimate aim, namely the adaptation of the education process to the capacity of children with specific educational needs. It was also objectively and reasonably justified.

On this latter point, the Government contested the applicants' claim that the Government had not submitted any satisfactory explanation regarding the large number of Roma in special schools. While admitting that the situation of the Roma with regard to education was not ideal, the Government considered that they had demonstrated that the special schools had not been established for the Roma community and that ethnic origin had not been a criterion for deciding on placements in special schools. They reiterated that special-school placements were only possible after prior individualised pedagogical and psychological testing. The testing process was a technical tool that was the subject of continuing scientific research and for that reason could only be carried out by qualified personnel. The courts did not possess the necessary qualifications and therefore had to exercise a degree of restraint in this field. As regards the professional standards referred to in the observations of the International Step by Step Association and others, the Government emphasised that these were not legal norms possessing force of law but, at most, non-binding recommendations or indications by specialists and that the failure to apply them could not, by definition, entail international legal responsibility.

The files of each of the applicants contained full details of the methods that had been used and the results of the testing. These had not been challenged at the time by any of the applicants. The applicants' allegations that the psychologists had followed a subjective approach appeared to be biased and not based on any evidence.

The Government again conceded that there might have been rare situations where the reason for the placement in a special school was on the borderline between learning difficulties and a socio-culturally disadvantaged environment. Among the eighteen cases, this had apparently happened in one case only, that of the ninth applicant. Otherwise, the pedagogical-psychological diagnostics and the testing at the educational psychology centres had proved learning difficulties in the case of all the applicants.

The educational psychology centres that had administered the tests had only made recommendations concerning the type of school in which the child should be placed. The essential, decisive factor was the wishes of the parents. In the instant case, the parents had been informed that their children's placement in a special school depended on their consent and the consequences of such a decision had been explained to them. If the effect of their consent was not entirely clear, they could have appealed against the decision regarding placement and could at any time have required their child's transfer to a different type of school. If, as they now alleged, their consent was not informed, they should have sought information from the competent authorities. The Government noted in this respect that Article 2 of Protocol No. 1 to the Convention emphasised the primary role and responsibility of parents in the education of their children. The State could not intervene if there was nothing in the parents' conduct to indicate that they were unable or unwilling to decide on the most appropriate form of education for their children. Interference of that sort would contravene the principle that the State had to respect parents' wishes regarding education and teaching.

In the instant case, the Government noted that apart from appealing to the Constitutional Court and lodging an application with the European Court of Human Rights, the applicants' parents had on the whole done nothing to spare their children the alleged discriminatory treatment and had played a relatively passive role in their education.

The Government rejected the applicants' argument that their placement in special schools had prevented them from pursuing a secondary or higher education. Whether the applicants had finished their compulsory education before or after the entry into force of the new Schools Act (Law no. 561/2004), it had been open to them to pursue their secondary education, to take additional lessons to bring them up to the appropriate level or to seek career advice. However, none of the applicants had established that they had attempted to do so (albeit unsuccessfully) or that their (alleged) difficulties were due to a more limited education as a result of their earlier placement in a special school. On the contrary, several of the applicants had decided not to pursue their studies or had abandoned them. The Government were firmly convinced that the applicants had deprived themselves of the possibility of continuing their studies through a lack of interest. Their situation, which in many cases was unfavourable, had stemmed mainly from their own lack of interest, and was not something for which the State could be held responsible.

The Government conceded that the national authorities had to take all reasonable steps to ensure that measures did not produce disproportionate effects or, if that was not feasible, to mitigate and compensate for such effects. However, neither the Convention nor any other international instrument contained a general definition of the State's positive obligations concerning the education of Roma pupils or, more generally, of children from national or ethnic minorities. The Government noted in this connection that when determining the State's positive obligations, the Court sometimes referred to developments in the legislation of the Contracting Parties. However, they said that no European standard or consensus currently existed regarding the criteria to be used to determine whether children should be placed in special schools or how children with special learning needs should be educated and the special school was one of the possible and acceptable solutions to the problem.

Moreover, the positive obligations under Article 14 of the Convention could not be construed as an obligation to take affirmative action. That had to remain an option. It was not possible to infer from Article 14 a general obligation on the part of the State actively to compensate for all the disabilities which different sections of the population suffered from.

In any event, since special schools had to be regarded as an alternative, but not inferior, form of education, the Government submitted that they had in the instant case adopted reasonable measures to compensate for the disabilities of the applicants, who required a special education as a result of their individual situation, and that they had not overstepped the margin of appreciation which the Convention afforded the States in the education sphere. They observed that the State had allocated twice the level of resources to special schools as to ordinary schools and that the domestic authorities had made considerable efforts to deal with the complex issue of the education of Roma children.

The Government went on to provide information on the applicants' current situation obtained from the files of both the school and the Ostrava Job Centre (where those applicants who were unemployed had signed on). As a preliminary, they noted that the Ostrava region was afflicted by a high rate of unemployment and that, in general, young people who had received only a primary education had difficulties in finding work. While it was possible to obtain a qualification and career counselling from the State, the active participation of the job applicant was essential.

In concrete terms, two applicants were currently in their final year at primary school. Seven had begun vocational training in a secondary school in September 2006. Four had started but later abandoned their secondary-school studies, the majority through a lack of interest, and had instead signed on at the job centre. Lastly, five of the applicants had not sought to pursue their studies at secondary-school level but had registered at the job centre. Those applicants who had registered at a job centre had not co-operated with it or shown any interest in the offers of training or employment that had been made, with the result that some of them had already been struck off the job-applicants register (in some instances repeatedly).

Lastly, the Government rejected the applicants' claim that nothing had been changed by the introduction of the Schools Act (Law no. 561/2004). The Act unified the previously existing types of primary school and standardised the educational programmes. It did not provide for a separate, independent system of specialised schools, with the exception of schools for pupils with serious mental disorders, autism or combined mental and physical defects. Pupils with disabilities were individually integrated, wherever possible and desirable, into conventional schools. However, schools were authorised to set up separate classes with educational techniques and methods adjusted to their needs. The former ‘special schools’ could continue to function as separate institutions, but were now ‘primary schools’ providing education under a modified educational programme for primary education. Schools at which socially disadvantaged pupils were educated often made use of their right to establish assistant teacher's posts and preparatory classes designed to improve the children's communication skills and command of the Czech language. Teacher's assistants from the Roma community often served as a link between the school, family, and, in some instances, other experts and helped to integrate pupils into the education system. The region where the applicants lived favoured integrating Roma pupils in classes drawn from the majority population.

In their concluding submissions, the Government asked the Court carefully to examine the issue of the applicants' access to education in each individual case, though without losing sight of the overall context, and to hold that there had been no violation of the Convention.

The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV; and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). However, Article 14 does not prohibit a member State from treating groups differently in order to correct ‘factual inequalities’ between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (‘Case relating to certain aspects of the laws on the use of languages in education in Belgium’ v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, § 10; Thlimmenos v. Greece[GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom[GC], no. 65731/01, § 51, ECHR 2006-…). The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group (Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; and Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005), and that discrimination potentially contrary to the Convention may result from a de facto situation (Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006-…).

Discrimination on account of, inter alia, a person's ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment (Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-…; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005-…). The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures (Timishev, cited above, § 58).

As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France[GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91–92, ECHR 1999-III; and Timishev, cited above, § 57).

As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others (cited above, § 147) that in proceedings before it there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties' submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake.

The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation —Aktaş v. Turkey (extracts), no. 24351/94, § 272, ECHR 2003-V). In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (Salman v. Turkey[GC], no. 21986/93, § 100, ECHR 2000-VII; and Anguelova v. Bulgaria, no. 38361/97, § 111, ECHR 2002-IV). In the case of Nachova and Others, cited above, § 157), the Court did not rule out requiring a respondent Government to disprove an arguable allegation of discrimination in certain cases, even though it considered that it would be difficult to do so in that particular case in which the allegation was that an act of violence had been motivated by racial prejudice. It noted in that connection that in the legal systems of many countries proof of the discriminatory effect of a policy, decision or practice would dispense with the need to prove intent in respect of alleged discrimination in employment or in the provision of services.

As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in themselves disclose a practice which could be classified as discriminatory (Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination, in which the applicants alleged a difference in the effect of a general measure or de facto situation (Hoogendijk, cited above; and Zarb Adami, cited above, §§ 77–78), the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations.

Thus, in the Hoogendijk decision the Court stated: ‘[W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule — although formulated in a neutral manner — in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.’

Lastly, as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases (Chapman v. the United Kingdom[GC], no. 27238/95, § 96, ECHR 2001-I; and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004).

In Chapman (cited above, §§ 93–94), the Court also observed that there could be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.

The Court notes that as a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the Parliamentary Assembly's Recommendation no. 1203 (1993) on Gypsies in Europe, cited in paragraph 56 above and point 4 of its Recommendation no. 1557 (2002): ‘The legal situation of Roma in Europe’, cited in paragraph 58 above). As the Court has noted in previous cases, they therefore require special protection (see paragraph 181 above). As is attested by the activities of numerous European and international organisations and the recommendations of the Council of Europe bodies (see paragraphs 54–61 above), this protection also extends to the sphere of education. The present case therefore warrants particular attention, especially as when the applications were lodged with the Court the applicants were minor children for whom the right to education was of paramount importance.

The applicants' allegation in the present case is not that they were in a different situation from non-Roma children that called for different treatment or that the respondent State had failed to take affirmative action to correct factual inequalities or differences between them (Thlimmenos, cited above, § 44; and Stec and Others, cited above, § 51). In their submission, all that has to be established is that, without objective and reasonable justification, they were treated less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect discrimination.

The Court has already accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group (Hugh Jordan, cited above, § 154; and Hoogendijk, cited above). In accordance with, for instance, Council Directives 97/80/EC and 2000/43/EC (see paragraphs 82 and 84 above) and the definition provided by ECRI (see paragraph 60 above), such a situation may amount to ‘indirect discrimination’, which does not necessarily require a discriminatory intent.