What good are Europe's treaties aimed at ensuring the legal equality of all citizens when entire groups face systematic discrimination?
That is the question that the European Court of Human Rights (ECHR) faces this week as its Grand Chamber, consisting of 17 judges, begins considering an appeal of an initial ruling that rejected claims of discrimination against the Roma by the Czech Republic's education authorities.
All European states are members of the Council of Europe, all have signed the European Convention on Human Rights, 39 of the 46 member states have adopted the Framework Convention for the Protection of National Minorities and 14 have ratified Protocol 12 on the prohibition against discrimination. Nevertheless, the living conditions of many Roma remain appalling.
Although reports published last year by the EU's Monitoring Center on Racism and Xenophobia and the Council of Europe's Human Rights Commissioner note some improvements, they indicate Roma living conditions have stagnated, if not deteriorated.
Roma are still victims of discrimination in access to housing, employment, healthcare and education, despite significant local efforts at the Council of Europe's instigation and with its support.
Discrimination in educational access is particularly important, given its profound effect on its victims' life prospects. In the most extreme cases, the education system itself is segregated -- isolated schools in remote camps, special classes for Roma children in mainstream schools and an over-representation of Roma children in classes for children with learning difficulties.
The ECHR was confronted with the third issue in the case D.H. and others vs. Czech Republic. The Court was referred to 18 cases of girls and boys who, between 1996 and 1999, were placed in special schools for children with learning difficulties, either directly or after a period of time in primary schools.
The question was whether the children were victims of discrimination owing to their national minority status.
The Czech government admitted that some of the special schools' student bodies comprised 80 percent to 90 percent Roma children.
However, if there was discrimination, it was not direct, because under Czech law, such a move could be decided only by a school headmaster based on the results of an intelligence test at an educational psychology counseling centre, and subject to the approval of the child's parents or legal guardian.
A difference in treatment is not discriminatory in itself. According to the case law of national supreme courts and the ECHR, discrimination exists only when people in a similar situation are treated differently. Yet national and international case law recognizes that a non-discriminatory measure in theory can be discriminatory in practice. So, in the current case, the alleged discrimination does not stem from the law itself, but from its effects, with the plaintiffs relying mainly on statistics showing the over-representation of Roma in special schools.
Many other reports on the situation of Roma in the Czech Republic, including by the Council of Europe, are available. But, as the Court rightly noted, it should rule only on the cases to which it is referred, and should not make known its opinion on the Czech education system's legitimacy, as choices concerning educational opportunities fall under the jurisdiction of states and therefore can vary accordingly.
Working on this assumption and given the case it had to solve, an ECHR panel of seven judges ruled against the plaintiffs in February last year, concluding that the law on special schools is not aimed specifically at Roma and does not apply only to them. According to the Court, the law's legitimate purpose is to adapt teaching to the difficulties of a specific category of pupils, and psychological tests seem to be objective enough not to be suspected of racial bias. Moreover, the requirement of parents' approval for placing children in special schools remains valid, while Roma children who were initially placed in those schools could have returned to mainstream schools later, and thus reintegrated into normal schooling.
As well-founded as the court's reasoning may be, a feeling of unease persists. The statistics showing the enormous proportion of Roma children in those schools are hard to ignore, and the suspicion of discrimination is difficult to avoid. While laws have changed, mentalities do not always follow at the same pace, and we intuitively know that it is easy to get psychology to mean a lot of things.
Indeed, before announcing its decision, the court felt it necessary to state that while it did not conclude that the Convention had been violated, statistics still revealed "worrying figures, and the situation in general in the Czech Republic regarding Roma children's education needs to be improved."
The Court's president, Jean-Paul Costa, expressed a similar view, without questioning the legitimacy of the decision, although Judge Cabral Barreto wrote a dissenting opinion.
Moreover, it is significant that the Court agreed, at the request of the parties, to refer the case on appeal to its Grand Chamber. According to Costa, rejecting the ruling in February last year would contradict previous case law. Will the Court, then, decide on the workings of the Czech education system itself? Or will it follow Judge Barreto, who calls for recognition of an obligation to adopt affirmative action policies aimed at benefiting Romanies?
Whatever formula is adopted, it is certain that Roma children should have the same opportunities as other children. It is this imperative that underlies the importance of the decision, for it provides an occasion for the Court to reassert the fundamental principle of non-discrimination that defines our democratic societies.
Robert Badinter is a former president of France's Constitutional Court. As minister of justice, he abolished the guillotine and the death penalty in France. He is now a member of the French Senate.
copyright: project Syndicate
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