Preliminary objection dismissed;Violation of Art. 6-1;Violation of Art. 14+P1-2;Non-pecuniary damage - award

Alvina Gyulumyan;Anatoly Kovler;Christos Rozakis;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Renate Jaeger;Sverre Erik Jebens

The applicants were born DATE and live respectively in GPE , PERSON and GPE . Their names and details are set out in the appendix .

During their education , the applicants at times attended separate classes , comprising only GPE pupils , at a primary school in the village of GPE for CARDINAL applicants ( the second to tenth applicants ) and at a primary school in the village of GPE , in GPE , for CARDINAL applicants ( DATE applicants ) . In GPE , primary education consists of CARDINAL grades and children are obliged to attend school from DATE . The first CARDINAL grades are considered as lower grades and each class is assigned a class teacher who in principle teaches all subjects . The fifth to eighth grades are upper grades in which , in addition to a class teacher assigned to each class , different teachers teach different subjects . The curriculum taught in any primary school class , including the GPE - only classes which the applicants attended , may be reduced by PERCENT in comparison to the regular , full curriculum .

The proportion of GPE children in the lower grades ( from the first to the fourth grade ) varies from PERCENT to PERCENT . The total number of pupils in Podturen Primary School in DATE was CARDINAL , CARDINAL of whom were GPE . There was CARDINAL GPE - only class , with CARDINAL pupils , while the remaining CARDINAL GPE pupils attended mixed classes .

NORP In DATE a pre - school programme called “ Little School ” ( Mala škola ) was introduced in the PERSON settlement in GPE . It included about CARDINAL NORP children and was designed as a preparatory programme for primary school . CARDINAL educators were involved , who had previously received special training . The programme ran from DATE to DATE . This programme has been provided on a permanent basis since DATE . It usually includes CARDINAL GPE children aged from CARDINAL to CARDINAL . The programme is carried out by an educator and a GPE assistant in cooperation with ORG . An evaluation test is carried out at the end of the programme .

NORP In DATE ORG and Sports adopted a decision introducing GPE assistants in schools with GPE pupils from the first to fourth grades . In Podturen Primary School , there was already a GPE assistant who had worked there since DATE . A statement made by CARDINAL such assistant , PERSON , on DATE reads :

“ I started work at ORG in DATE . At that time there were CARDINAL classes in the fourth grade . Class CARDINAL ( b ) had GPE pupils only and it was very difficult to work with that class because the pupils were agitated and disrupted the teaching . I contemplated leaving after DATE . At the request of teachers , I would give written invitations to the parents or I would invite them orally to come to talk with the teachers at the school . Some parents would come , but often not , and I had to go and ask them again . A lot of time was needed to explain NORP words to the pupils because some of them continued to speak PERSON and the teachers could not understand them . I told the pupils that they should attend school regularly . Some pupils would just leave classes or miss a whole day . I helped pupils with homework after school . I helped the school authorities to compile the exact list of pupils in the first grade . I no longer work at the school . ”

Since DATE there have been no GPE - only classes in Podturen Primary School .

The proportion of NORP children in the lower grades varies from PERCENT . GPE - only classes are formed in the lower grades and only exceptionally in the higher grades . All classes in the CARDINAL final grades ( seventh and eighth ) are mixed . The total number of pupils in ORG in DATE was CARDINAL , CARDINAL of whom were GPE . There were CARDINAL GPE - only classes , with CARDINAL pupils in all , while the remaining CARDINAL GPE pupils attended mixed classes .

NORP Since DATE the participation of GPE assistants has been implemented .

A “ Little School ” pre - school programme was introduced in DATE .

The applicants submitted that they had been told that they had to leave school at DATE . Furthermore , the applicants submitted statistics showing that in DATE PERCENT of NORP children DATE completed their primary education , compared with PERCENT of the general primary school population in GPE . The drop - out rate of GPE pupils without completing primary school was PERCENT , which was CARDINAL times higher than for the general population . In DATE , CARDINAL GPE children were enrolled in the first grade and CARDINAL in the eighth .

The following information concerning each individual applicant is taken from official school records .

By a letter of CARDINAL DATE , the first applicant expressed the wish to withdraw his application . Thus in the ORG judgment of DATE the ORG decided to discontinue the examination of the application in so far as it concerned the first applicant .

The second applicant , PERSON , was enrolled in the first grade of primary school in DATE . She attended a mixed class DATE and DATE , but in DATE she failed to go up a grade . In DATE to CARDINAL/CARDINAL she attended a GPE - only class . In DATE she attended a mixed class . In DATE she took the sixth grade for the second time and failed . She failed the first and the sixth grades twice . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .

She was provided with additional classes in NORP in the fourth grade . From the first to the fourth grade she participated in extracurricular activities in a mixed group ( that is to say a number of different activities organised for the same group of children ) , organised by the school . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .

The third applicant , PERSON , was enrolled in the first grade of primary school in DATE and passed the first grade . DATE and DATE he attended a GPE - only class . In DATE and DATE he attended a mixed class and after that a GPE - only class for the remainder of his schooling . In DATE he passed the fourth grade . He failed the second grade CARDINAL times . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .

He was not provided with additional classes in NORP . From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school . After reaching DATE he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .

Later , he enrolled in TIME classes in ORG in GPE , where he completed his primary education .

The fourth applicant , PERSON , was enrolled in the first grade of primary school in DATE . During DATE he attended a GPE - only class and the following DATE a mixed class . In DATE he attended a GPE - only class . In DATE he attended a mixed class . In DATE he took the fifth grade for the second time and failed . He failed the second grade CARDINAL times , the fourth grade once and the fifth grade twice . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .

He was not provided with additional classes in NORP . From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .

Later , he enrolled in fifth - grade TIME classes , but did not attend .

The fifth applicant , PERSON , was enrolled in the first grade of primary school in DATE and passed the first grade . In DATE to DATE he attended a GPE - only class , after which he attended a mixed class . In DATE he took the fifth grade for the third time and failed . He failed the fourth grade once and the fifth grade CARDINAL times . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .

He was not provided with additional classes in NORP . From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification . In DATE the school authorities wrote to the competent social welfare centre informing them of the applicant ’s poor school attendance .

The sixth applicant , PERSON , was enrolled in the first grade of primary school in DATE and attended a GPE - only class . The following DATE she attended a mixed class . In DATE to DATE she attended a GPE - only class and passed the fourth grade , after which she attended a mixed class . From DATE she followed an adapted curriculum for the rest of her schooling on the ground that a competent expert committee – the Children ’s Psycho - physical ORG ( GPE za utvrđivanje psihofizičkog stanja djeteta ) had established that she suffered from developmental difficulties . In DATE she took the fifth grade for the second time and failed . She failed the first grade CARDINAL times and the fifth grade twice . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .

She was provided with additional classes in NORP in her third grade . From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .

Later , she enrolled in fifth - grade TIME classes , but did not attend .

The seventh applicant , PERSON , was enrolled in the first grade of primary school in DATE and attended a GPE - only class up to and including DATE , after which he attended a mixed class . From DATE he followed an adapted curriculum in his further schooling on the ground that a competent expert committee – the Children ’s Psycho - physical ORG ( ORG za utvrđivanje psihofizičke sposobnosti djece ) had established that he suffered from developmental difficulties . In DATE he took the sixth grade for the second time and failed . He failed the fifth and sixth grades twice . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .

He was provided with additional classes in NORP in the third grade in DATE . From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .

The eighth applicant , PERSON , was enrolled in the first grade of primary school in DATE and in DATE attended a GPE - only class , after which she attended a mixed class for DATE . On DATE ORG ( Ured za prosvjetu , kulturu , informiranje , šport i tehničku kulturu PERSON ) ordered that she follow an adapted curriculum during the rest of her schooling on the ground that a competent expert committee DATE the Children ’s Psycho - physical ORG DATE had established that she suffered from poor intellectual capacity , concentration difficulties and socio - pedagogical neglect . It was also established that she was in need of treatment from the competent social welfare centre . In DATE and DATE she attended a GPE - only class and passed the fourth grade . In the following DATE she attended a mixed class , took the fifth grade for the second time and failed . She failed the third grade CARDINAL times and the fifth grade twice . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .

She was provided with additional classes in NORP in the third grade in DATE . She participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .

The ninth applicant , PERSON , was enrolled in the first grade of primary school in DATE and attended a GPE - only class up to and including DATE , after which she attended a mixed class . In DATE she took the fifth grade for the third time and failed . She failed the fourth grade once and the fifth grade CARDINAL times . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .

She was provided with additional classes in NORP in the third grade in DATE . From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .

The tenth applicant , PERSON , was enrolled in the first grade of primary school in DATE and attended a mixed class for DATE . From CARDINAL to DATE he attended a GPE - only class , after which he attended a mixed class . On DATE ORG ordered that he follow an adapted curriculum during the rest of his schooling on the ground that a competent expert committee – the Children ’s Psycho - physical ORG DATE had established that he suffered from developmental difficulties . In DATE he failed the sixth grade . He failed the first grade twice and the fourth and sixth grades once . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .

He was provided with additional classes in NORP in the third grade in DATE . He participated in extracurricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .

The eleventh applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before his assignment to a particular class showed that he did not understand the NORP language . He scored CARDINAL out of CARDINAL points ( PERCENT ) . He was therefore assigned to a GPE - only class , where he spent his entire schooling . In DATE he took the fifth grade for the second time and failed . He failed the first and the fourth grades once and the fifth grade twice . Out of CARDINAL parent - teacher meetings organised during his entire primary schooling , his parents attended none .

He was provided with additional classes in NORP in the third grade in DATE . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .

The twelfth applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before his assignment to a particular class showed that he did not understand the NORP language . He scored CARDINAL out of CARDINAL points ( PERCENT ) . He was therefore assigned to a GPE - only class , where he spent his entire schooling . In DATE he took the third grade for the second time and failed . He failed the first grade once , the second grade CARDINAL times and the third grade twice . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended none .

He was provided with additional classes in NORP in the first , second and third grades . In the second grade he participated in a dancing group and in the third grade in a choir . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .

The thirteenth applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before her assignment to a particular class showed that she had inadequate knowledge of the NORP language . She scored CARDINAL out of CARDINAL points ( PERCENT ) . She was therefore assigned to a GPE - only class , where she spent her entire schooling . In DATE she passed the fifth grade . She failed the first grade twice and the second grade once . Out of CARDINAL regular parent - teacher meetings organised during her primary schooling , her parents attended CARDINAL .

She was provided with additional classes in NORP in the first grade . In the first grade she participated in extracurricular activities in a mixed group and in the fifth grade in a choir . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .

The fourteenth applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before his assignment to a particular class showed that he did not understand the NORP language . He scored CARDINAL out of CARDINAL points ( PERCENT ) . He was therefore assigned to a GPE - only class , where he spent his entire schooling . In DATE he passed the third grade . He failed the first grade CARDINAL times and the third grade once . Out of CARDINAL regular parent - teacher meetings organised during his primary schooling , his parents attended CARDINAL .

He was provided with additional classes in NORP in the first grade . After reaching DATE , he left school in DATE . His school report shows that during his schooling he missed CARDINAL classes without justification .

The fifteenth applicant , PERSON , was enrolled in the first grade of primary school in DATE . The preliminary tests carried out before her assignment to a particular class showed that her understanding of the NORP language was poor . She scored CARDINAL out of CARDINAL points ( PERCENT ) . She was therefore assigned to a GPE - only class , where she spent her entire schooling . In DATE she passed the fifth grade . She failed the first grade twice and the second grade once . Out of CARDINAL regular parent - teacher meetings organised during her entire primary schooling , her parents attended CARDINAL .

She was provided with additional classes in NORP in the first grade . In the first grade she participated in extracurricular activities in a mixed group , in the second grade in dancing , in the third grade in handicraft classes , and in the fifth grade in a choir . After reaching DATE , she left school in DATE . Her school report shows that during her schooling she missed CARDINAL classes without justification .

On DATE the applicants brought an action under section CARDINAL of LAW in ORG ( PERSON ) against the above - mentioned primary schools and ORG , the ORG and GPE ( “ the defendants ” ) . They submitted that the teaching organised in the GPE - only classes in the schools in question was significantly reduced in volume and in scope compared to the officially prescribed curriculum . The applicants claimed that the situation described was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment . They requested the court to order the defendants to refrain from such conduct in the future .

The applicants also produced the results of a psychological study of GPE children attending GPE - only classes in PERSON , carried out immediately before their action was lodged , showing the following :

– most children had never had a non - GPE child as a friend ;

– PERCENT expressed a wish to have a non - GPE child as a friend ;

– PERCENT expressed a wish to attend a mixed class ;

– PERCENT said they felt unaccepted in the school environment ;

– PERCENT stated that GPE and non - NORP children did not play together .

Furthermore , the report asserted that segregated education produced emotional and psychological harm in GPE children , in terms of lower self - esteem and self - respect and problems in the development of their identity . Separate classes were seen as an obstacle to creating a social network of GPE and non - NORP children .

The defendants each submitted replies to the arguments put forward by the applicants , claiming that there was no discrimination of GPE children and that pupils enrolled in school were all treated equally . They submitted that all pupils were enrolled in school after a committee ( composed of a physician , a psychologist , a school counsellor ( pedagog ) , a defectologist and a teacher ) had found that the candidates were physically and mentally ready to attend school . The classes within a school were formed depending on the needs of the class , the number of pupils , etc . In particular , it was important that classes were formed in such a way that they enabled all pupils to study in a stimulating environment .

Furthermore , the defendants submitted that pupils of GPE origin were grouped together not because of their ethnic origin , but rather because they were often not proficient in NORP and it took more exercises and repetitions for them to master the subjects taught . Finally , they claimed that GPE pupils received the same quality of education as other pupils as the scope of their curriculum did not differ from that prescribed by law .

On DATE ORG dismissed the applicants’ action , accepting the GPE argument that the reason why most GPE pupils were placed in separate classes was that they were not fluent in NORP . Consequently , the court held that this was not unlawful and that the applicants had failed to substantiate their allegations concerning racial discrimination . Lastly , the court concluded that the applicants had failed to prove the alleged difference in the curriculum of the GPE - only classes .

On DATE the applicants appealed against the first - instance judgment , claiming that it was arbitrary and contradictory .

On DATE the Čakovec County Court ( Županijski sud u PERSON ) dismissed the ORG appeal , upholding the reasoning of the first - instance judgment .

Subsequently , on DATE , the applicants lodged a complaint with ORG ( Ustavni sud PERSON ) under section CARDINAL of LAW on FAC . In their constitutional complaint the applicants reiterated their earlier arguments , relying on the relevant provisions of LAW and of the Convention .

On DATE the ORG lawyer lodged an application with ORG to expedite the proceedings . On DATE ORG dismissed the ORG complaint in its decision no . U - III-CARDINAL/CARDINAL , published in ORG no . CARDINAL of CARDINAL DATE . The relevant parts of the decision read as follows .

“ The first - instance court established in the impugned judgment that the criteria for formation of classes in the defendant primary schools had been knowledge of the NORP language and not the pupils’ ethnic origin . The [ first - instance ] court considered that the complainants had failed to prove their assertion that they had been placed in their classes on the basis of their racial and ethnic origin . The [ first - instance ] court stressed that the complainants relied exclusively on the activity report of the Ombudsman for DATE . However , the ORG said in his evidence that the part of the report referring to the education of GPE had been injudicious because all the relevant facts had not been established .

The first - instance court relied on section CARDINAL paragraph CARDINAL of LAW ... which provides that teaching in primary schools is in the NORP language and NORP script , and considered a lack of knowledge of the NORP language as an objective impediment in complying with the requirements of the school curriculum , which also transpires from the conclusion of a study carried out for the needs of ORG . The [ first - instance ] court found :

‘ pupils enrolling in DATE of primary schools have to know the NORP language , so that they are able to follow the teaching , if the purpose of primary education is to be fulfilled . It is therefore logical that classes with children who do not know the NORP language require additional efforts and commitment of teachers , in particular to teach them the NORP PERSON

The first - instance court found that the defendants had not acted against the law in that they had not changed the composition of classes once established , as only in exceptional situations was the transfer of pupils from CARDINAL class to another allowed . The [ first - instance ] court considered that this practice respected the integrity of a class and its unity in the upper grades .

The [ first - instance ] court considered that classes should be formed so as to create favourable conditions for an equal approach to all pupils according to the prescribed curriculum and programme , which could be achieved only where a class consisted of a permanent group of pupils of approximately the same age and knowledge .

Furthermore , the [ first - instance ] court found that the complainants had failed to prove their assertion that ... they had a curriculum of significantly smaller volume than the one prescribed for primary schools by ORG and Sports on DATE . The [ first - instance ] court found that the above assertion of the complainants relied on the ORG ’s report . However , the ORG said in his testimony that he did not know how the fact that in GPE - only classes the teaching followed a so - called special programme had been established .

The [ first - instance ] court established that teaching in the ORG respective classes and the parallel ones followed the same curriculum . Only in ORG were there some deviations from the school curriculum , but the [ first - instance ] court found those deviations permissible since they had occurred ... at the beginning of DATE owing to low attendance .

After having established that the complainants had not been placed in their classes according to their racial and ethnic origin and that the curriculum had been the same in all parallel classes , the first - instance court dismissed the ORG action .

The reasoning of the first - instance judgment ... shows that the defendant primary schools replied to the ORG allegations as follows :

‘ The [ defendant schools ] enrolled in DATE those children found psycho - physically fit to attend primary school by a committee composed of a physician , a psychologist , a school counsellor [ pedagog ] , a defectologist and a teacher . They did not enrol NORP children or GPE children as such , but children found by the said committee to be psychologically and physically fit to be enrolled in primary school . ... The defendant primary schools maintain that the first obstacle for GPE children in psychological tests is their lack of knowledge of the NORP language in terms of both expression and comprehension . As to the emotional aspect of maturity , most of these children have difficulty channelling their emotions . In terms of social maturity , children of GPE origin do not have the basic hygienic skills of washing , dressing , tying or buttoning , and a lot of time is needed before they achieve these skills . ... It is therefore difficult to plan lessons with sufficient motivation for all children , which is CARDINAL of the obligations of primary schools . There are classes composed of pupils not requiring additional schooling to follow the teaching programme and classes composed of pupils who require supplementary work and assistance from teachers in order to acquire the necessary [ skills ] they lack owing to social deprivation . ... ’

The reasoning of the same judgment cites the testimony of ORG , a school counsellor and psychologist at ORG , given on DATE ... ;

‘ Before enrolment the committee questions the children in order to establish whether they possess the skills necessary for attending school . Classes are usually formed according to the PERSON curve , so that the majority in a given class are average pupils and a minority below or above average . ... However , in a situation where PERCENT of the population does not speak NORP , a different approach is adopted so as to form classes with only pupils who do not speak NORP , because in those classes a teacher ’s first task is to teach the children the PERSON

The above shows that the allocation of pupils to classes is based on the skills and needs of each individual child . The approach is individualised and carried out in keeping with professional and pedagogical standards . Thus , the Constitutional Court finds the approach applied correct since only qualified experts , in particular in the fields of pedagogy , school psychology and defectology , are responsible for assigning individual children to the appropriate classes .

ORG has no reason to question the findings and expert opinions of the competent committees , composed of physicians , psychologists , school counsellors [ pedagog ] , defectologists and teachers , which in the instant case found that the complainants should be placed in separate classes .

None of the facts submitted to ORG leads to the conclusion that the placement of the complainants in separate classes was motivated by or based on their racial or ethnic origin .

The Constitutional Court finds that their placement pursued the legitimate aim of necessary adjustment of the primary educational system to the skills and needs of the complainants , where the decisive factor was their lack of knowledge or inadequate knowledge of NORP , the language used to teach in schools .

The separate classes were not established for the purpose of racial segregation in enrolment in DATE of primary school but as a means of providing children with supplementary tuition in the NORP language and eliminating the consequences of prior social deprivation .

It is of particular importance to stress that the statistical data on the number of GPE children in separate classes in DATE ... are not in themselves sufficient to indicate that the defendants’ practice was discriminatory ( see also ORG judgments PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE , and ORG and Others v. GPE , no . MONEY , § DATE , DATE ) .

Moreover , the complainants themselves maintain in their constitutional complaint that in DATE PERCENT of GPE children in GPE were placed in regular classes , which tends to support ORG conclusion that there is no reason to challenge the correct practice of the defendant primary schools and expert committees .

In their constitutional complaint the complainants further point out that , ‘ [ e]ven if lack of knowledge of the NORP language on enrolment in DATE was a problem , the same could not be said of the ORG enrolment in upper ORG . They therefore consider that their rights were violated by the ORG findings that it had been justified to maintain separate [ GPE - only ] classes in the upper grades in order to preserve the stability of the wholeness of a given class . The complainants submit that the stability of a class should not have been placed above their constitutional rights , multiculturalism and national equality .

In that regard ORG accepts the ORG arguments .

While ORG considers correct and acceptable the ORG findings that lack of knowledge of the NORP language represents an objective obstacle justifying the formation of separate classes for children who do not speak NORP at all or speak it badly when they start school ... bearing in mind the particular circumstance of the present case , it can not accept the following conclusion of the first - instance court :

‘ Furthermore , the integrity and unity of a class is respected in the upper grades . Therefore , transfer of children from CARDINAL class to another occurs only exceptionally and in justified cases ... because a class is a homogeneous whole and transferring children from CARDINAL class to another would produce stress . ... The continuity of a group is a precondition for the development of a class collective ... ’

Accordingly , ORG can not accept the following view of the appellate court :

‘ The classes are formed when the children enter DATE of their schooling , not DATE , and their composition changes only exceptionally . They become a settled whole which makes for work of a higher quality and it is not pedagogically justified to change them . Therefore this court , like the first - instance court , concludes that maintaining established classes did not amount to an unlawful act.’

The above views of the courts would have been acceptable had they referred to the usual situations concerning the assignment of pupils to upper grade classes in primary schools where no objective need for special measures existed , such as forming separate classes for children with inadequate command of NORP .

Considering the circumstances of the present case , ORG finds that it is in principle objectively and reasonably justified to maintain separate classes in the upper grades of primary school only for pupils who have not attained the level of NORP necessary for them to follow the school curriculum of regular classes properly . ...

However , there is no objective or reasonable justification for not transferring to a regular class a pupil who has attained proficiency in NORP in the lower grades of primary school and successfully mastered the prescribed school curriculum .

Keeping such a pupil in a separate class against his or her will ... for reasons unrelated to his or her needs and skills would be unacceptable from the constitutional point of view with regard to the right of equality before the law , guaranteed under LAW .

... [ A ] constitutional complaint is a particular constitutional instrument for the protection of a legal subject whose human right or fundamental freedom guaranteed under LAW has been infringed in an individual act of a ORG or public body which determined his or her rights and obligations .

The present constitutional complaint concerns impugned judgments referring to DATE . However , not a single complainant alleges that in DATE he or she was a pupil in a separate [ GPE - only ] upper - grade class or was personally affected or concerned by the contested practice ...

Although it does not concern the individual legal position of any of the complainants ... , in respect of the ORG general complaint about the maintaining of GPE - only classes in the upper grades of primary school ORG has addressed the following question :

– was the continued existence of GPE - only classes in the upper grades of primary school ... caused by the GPE intent to discriminate those pupils on the basis of their racial or ethnic origin ?

... [ N]one of the facts submitted to ORG lead to the conclusion that the GPE ... practice was aimed at discrimination of the GPE pupils on the basis of their racial or ethnic origin .

The complainants further complain of a violation of their right to education on the ground that the teaching organised in those classes was more reduced in volume and in scope than the curriculum for primary schools adopted by ORG and Sports on DATE . They consider that ‘ their placement in GPE - only classes with an inferior curriculum stigmatises them as being different , stupid , intellectually inferior and children who need to be separated from normal children in order not to be a bad influence on them . Owing to their significantly reduced and simplified school curriculum , their prospects of higher education or enrolment in high schools as well as their employment options or chances of advancement are slimmer ... ’

After considering the entire case file , ORG has found that the above allegations are unfounded . The case file , which includes the first - instance judgment ... , shows that the allegations of an inferior curriculum in GPE - only classes are not accurate . ORG has no reason to question the facts as established by the competent court .

The possible difference in curricula between parallel classes for objective reasons ( for example the low attendance at ORG , where in the first term of DATE the pupils in classes CARDINAL , CARDINAL , CARDINAL and CARDINAL missed CARDINAL lessons in total , CARDINAL of which were missed for no justified reason ) does not contravene the requirement that the curriculum be the same in all parallel classes .

ORG is obliged to point out that neither the LAW nor the LAW guarantees any specific requirements concerning school curricula or their implementation . First and foremost the LAW and the LAW guarantee a right of access to educational institutions existing in a given ORG , as well as an effective right to education , in other words that every person has an equal right to obtain official recognition of the studies which he or she has completed ( a similar view was expressed by ORG in a case relating to certain aspects of the laws on the use of languages in education in [ Case “ relating to certain aspects of the laws on the use of languages in education in ] GPE [ ” ] ( merits ) , DATE , Series A no . CARDINAL ) . ...

... [ T]he ORG finds the evidence submitted in the present proceedings insufficient to show beyond doubt that the complainants had to follow a school curriculum of lesser scope . ...

Thus , ORG considers the ORG assertion about being stigmatised as a subjective value judgment , without reasonable justification . The Constitutional Court finds no factual support for the ORG assertion that the source of their stigmatisation was an allegedly reduced curriculum owing to which their prospects for further education were lower , and dismisses that assertion as arbitrary . The competent bodies of GPE recognise the level of education a person has completed irrespective of his or her racial or ethnic origin . In that respect everyone is equal before the law , with equal chances of advancement according to their abilities . ”

Article CARDINAL of the LAW reads :

“ Everyone in GPE shall enjoy rights and freedoms , regardless of race , colour , gender , language , religion , political or other belief , national or social origin , property , birth , education , social status or other characteristics .

All shall be equal before the law . ”

The relevant parts of section CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE read :

“ CARDINAL . Everyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , which decided about his or her rights and obligations , or about suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional right ) ...

NORP If another legal remedy exists against the violation of the constitutional right [ complained of ] , the constitutional complaint may be lodged only after that remedy has been exhausted .

NORP In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law is allowed , remedies are exhausted only after the decision on these legal remedies has been given . ”

Section CARDINAL of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL , CARDINAL/CARDINAL and DATE ) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials , specifically that an action can be brought if the following conditions are met : ( a ) an unlawful action has already taken place ; ( b ) such action is the work of a government official / body / agency or another legal entity ; ( c ) the action resulted in a violation of CARDINAL or more of the plaintiff ’s constitutional rights ; and ( d ) the NORP legal system does not provide for any other avenue of redress .

The relevant provisions of LAW ( Zakon o osnovnom školstvu , ORG nos . DATE , CARDINAL , CARDINAL , DATE , CARDINAL/CARDINAL , PERSON , PERSON and CARDINAL/CARDINAL ) read :

“ The purpose of primary education is to enable a pupil to acquire knowledge , skills , views and habits necessary for life and work or further education .

A school is obliged to ensure continuous development of each pupil as a spiritual , physical , moral , intellectual and social being in accordance with her or his abilities and preferences .

The aims of primary education are :

– to arouse and cultivate in pupils an interest and independence in learning and problem solving as well as creativity , moral consciousness , aesthetic tastes and criteria , self - esteem and responsibility towards the self and nature , social , economic and political awareness , tolerance and ability to cooperate , respect for human rights , achievements and aspirations ;

– to teach literacy , communication , calculation , scientific and technological principles , critical observation , rational argumentation , understanding of the life we live and understanding of the interdependence of people and nature , individuals and nations .

The aims and tasks of primary education shall be realised according to the established teaching plans and programmes . ”

“ Primary education lasts DATE .

Primary education is in principle mandatory for all children from DATE . ”

The relevant part of the report concerning the situation of GPE reads :

“ CARDINAL . Overall , ORG are reported to continue to face societal discrimination and official inaction when complaints are filed . ORG has been made in the fields of education and public awareness , through the publication of studies on the subject of PERSON education , initiatives related to the organisation and financing of education of NORP children , training of GPE teachers , and public forums on the difficulties faced by ORG society . The authorities are encouraged to give further support to such initiatives , taking into account ORG ’s General Policy Recommendation No . CARDINAL on combating racism and intolerance against Roma / Gypsies . ... ”

The relevant parts of this report read :

“ Access to education

Education of ORG children is a serious problem in GPE . Many ORG children do not go to school , having either dropped out or having never attended . According to ORG representatives , there are regions where not a single ORG child attends school . ORG understands that the reasons for this situation are complex , and there is no easy solution , however emphasises the need to increase the participation of ORG children at all levels of education . The NORP authorities are encouraged to make special efforts in this regard .

ECRI wishes to draw attention to its General Policy Recommendation No . CARDINAL on combating racism and intolerance against Roma / Gypsies , where the existence of discrimination in explaining the process of social exclusion is highlighted . An investigation should be carried out into the role of stereotypes and prejudices of teachers , which may lead to low expectations for ORG . ORG recommends , in this respect , that training be offered to teachers , including information about the particular needs and expectations of ORG and the ability to use this knowledge effectively . As insufficient knowledge of the NORP language upon entry to classes may also present an obstacle , ORG emphasises the importance of preparatory classes , additional training in the NORP language and increased opportunities to study the GPE language in DATE of schooling , which might assist ORG children in integrating into the educational system . ORG notes with interest initiatives such as the “ Programme for Including NORP children in FAC ” , launched in DATE , and encourages the authorities in their efforts to continue to develop and implement appropriate measures in cooperation with ORG . ORG organisations have highlighted the connection between poverty , poor living conditions and school attendance . The NORP authorities might consider creating special assistance programmes for ORG and other children from extremely poor families who may find the costs of textbooks , other school materials and proper school dress prohibitive . ”

“ Education and awareness raising

ECRI is concerned to learn that schoolbooks sometimes convey negative images of certain minority groups , particularly ... GPE .

Situation of the NORP community in GPE

ECRI is pleased to learn that in DATE the government adopted a national programme for the GPE which aims to resolve many of the difficulties encountered by GPE in their day - to - day lives . The programme is based on the observation that GPE are largely marginalised in social and public activities and experience worse living conditions than the average majority population and other minorities . The programme aims to abolish all forms of discrimination , violence , stereotyping and prejudice against GPE , while ensuring that they do not lose their own identity , culture or traditions . In order to achieve this aim , the programme sets out a series of measures in areas such as access to citizenship , education , housing , access to public services and relations with the police . In DATE , a commission made up of government representatives , GPE and NGO [ non - governmental organisation ] representatives was set up to monitor the programme and develop a joint action plan for the different ministries . A number of measures have already been taken , such as the training of GPE as assistants in schools or as police officers and the training of young GPE at seminars on participation in public life . ... However , implementation of the programme has not really got off the ground yet and NGOs are critical of the lack of budgetary resources provided , though these are essential to the success of such a programme . The programme must be regarded as positive , although in ORG ’s view it does not sufficiently emphasise the part played by stereotyping and prejudice against GPE , both among the population and among representatives of the public authorities , in the difficulties encountered by this community . ORG also notes with interest that the government is in the process of adopting a national action plan for GPE integration , which proposes a wide range of measures to improve the situation of GPE .

Access to education for GPE children

In its second report on GPE , ORG recommended that the NORP authorities make special efforts to increase the participation of GPE children at all levels of education .

The authorities have taken measures to facilitate GPE children ’s access to education , such as setting up nursery school classes enabling them to learn NORP , training teachers in GPE culture and training young GPE as assistants in schools . Some GPE now receive ORG grants to enrol in university . However , as they are very recent and applied on a small scale these measures are not enough to offset the fact that GPE children are very much behind in terms of equal opportunities in education . Many NORP children leave school at a very early age . They do not always have access to education in their mother tongue and their own culture in schools , in spite of the legislation on the rights of national minorities which provides for this possibility . The authorities have explained to ORG that this is because the GPE have not asked for it themselves and because the PERSON language is not standardised , with several PERSON dialects in GPE . However , some GPE representatives have expressed the wish that the school curriculum for GPE children should include teaching of their mother tongue and GPE culture , though they also emphasise the importance of learning NORP .

DATE ECRI is particularly concerned by allegations that separate classes solely for NORP children exist alongside classes for non - NORP children in some schools in the NORP region . According to several NGOs , including ORG , education in the classes set aside for GPE children is of poorer quality than in the other classes . According to the authorities , however , the sole reason why there are still classes comprising only NORP children is the de facto segregation which they face where housing is concerned , since GPE are sometimes in the majority in some areas . Nevertheless , this explanation does not provide a response to allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools , they came up against opposition from the non - GPE parents , who apparently signed petitions against this measure , with the result that the separate classes were maintained . ORG notes that proceedings for racial segregation are pending before the national courts in this connection .

Recommendations

ECRI urges the NORP authorities to take measures without delay to improve equal opportunities for GPE children in education . It stresses the paramount importance of elaborating a short- , medium- and long - term policy in the matter and providing sufficient funds and other resources to implement this policy . In particular , it should be made easier for NORP children to learn NORP while also allowing those who so wish to be taught their PERSON dialect and GPE culture .

ECRI encourages the NORP authorities to conduct an in - depth investigation into the allegations that segregation is practised between GPE and non - NORP children in some schools and to rapidly take all the necessary measures , where appropriate , to put an end to such situations .

ECRI reiterates its recommendations that a study be carried out on the influence of stereotyping and prejudices among teachers , which may lead to low expectations of GPE children . It encourages all measures designed to educate teachers about GPE culture . ”

DATE . The relevant parts of the opinion read :

The Advisory Committee finds that GPE has not been able to secure full and effective equality between the majority population and GPE and that the situation of GPE remains difficult in such fields as employment , housing and education . It appears , however , that GPE issues have recently received increasing attention from the central authorities . ORG finds it important that this commitment increases the vigour with which sectoral projects for GPE , such as the ones in the field of education ( see also comments under LAW ) , are pursued and leads to the development , in consultations with GPE , of more comprehensive programmes and strategies to address the concerns of this national minority .

While recognising that there appears to be no large - scale separation of GPE children within the educational system of GPE , ORG is highly concerned about reports that in certain schools , GPE children are placed in separate classes and school facilities are organised and operated in a manner that appears to stigmatise GPE pupils . ORG stresses that placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent , objective and comprehensive tests . ORG supports the efforts of the office of the ORG to review this situation with a view to ensuring that GPE children have equal access to , and opportunities to continue to attend , regular classes . ORG is aware of the reservations expressed by some GPE with respect to the integration of GPE pupils into regular classes and supports efforts to involve GPE parents and GPE organisations in the process aimed at remedying the current situation . ORG considers that a key to reaching this aim is to secure that the educational system reflects and takes fully into account the language and culture of the minority concerned , as stipulated in the principles contained in ORG Recommendation No . R ( DATE ) CARDINAL on the education of ORG children in LOC . ORG notes that the government of GPE adopted in DATE a “ ORG in ORG ” which contains a number of useful ideas in this respect . The text of the programme appears however rather cursory in nature , and ORG considers that GPE needs to develop , implement and evaluate further its measures aimed at improving the status of GPE in the educational system .

PERSON for conclusions and recommendations by ORG

ORG concludes that in certain schools in GPE , GPE children are reportedly placed in separate classes , and school facilities are organised and operated in a manner that appears to stigmatise GPE pupils . ORG recommends that this question be reviewed , and necessary measures taken , with a view to ensuring that NORP children have equal access to , and opportunities to continue to attend , regular classes , bearing in mind the principles contained in ORG R ( DATE ) CARDINAL on the education of ORG children in LOC . ”

The relevant parts of the comments read :

The education of GPE is a serious problem caused by their way of life and their attitude towards the system , laws , rights and obligations of citizens and requires particular efforts and solutions . ORG and Sports , in cooperation with the other ministries and state institutions , local administration and self - government , as well as non - governmental organisations , has initiated programmes to resolve this issue at CARDINAL levels :

( a ) ORG of integration of the NORP population into the educational system of GPE .

( b ) Exercise of minority rights aimed at preserving their mother tongue and culture .

Regarding pre - school education , ORG and Sports , in cooperation with non - governmental organisations , initiated a programme for the inclusion of GPE children and their families , notably mothers , into the system , but only on a voluntary basis , while at the moment there are no effective mechanisms of obligatory inclusion .

At the level of primary and secondary education , GPE children attend classes together with other children . Those children who do not speak the NORP language may well be enrolled in special classes where they receive special attention with a view to learning the NORP language . This practice is implemented only in the first and second grade of primary school , after which children attend classes together with children of other nationalities . Although this practice has yielded some positive results , priority is given to the organisation of pre - school preparation to help GPE children to overcome the language barrier , learn the basic rules of school conduct , hygienic habits and needs , and strengthen the feeling of affiliation and security in the school environment . ORG and Sports , in cooperation with the local administration , has taken a number of measures for this purpose – additional assistance to overcome problems concerning the following and comprehension of school lessons , adaptation of curricula to the needs of NORP children , granting of accommodation for GPE pupils ( attending secondary schools ) , follow up to the process of inclusion , assisting in the preparation of young GPE for the profession of teachers and trainers , providing free school meals and bus transport to and from school and so forth . ”

The relevant parts of the opinion read :

“ LAW [ for ORG ]

Education of GPE children and contacts amongst pupils from different communities

Present situation

( a ) Positive developments

The authorities seem to be increasingly sensitive to the problems of GPE children in education and have launched new initiatives , including at the pre - school level , which are aimed at improving the situation and attendance of GPE children in schools . ORG details a number of laudable measures that could help to further the protection of the GPE in the educational system , such as the employment of GPE assistant teachers in regular classes and the provision of free meals for children .

( b ) Outstanding issues

The placing of GPE children in separate classes appears to be increasingly rare in GPE , but this practice , which has been challenged in pending legal cases , continues in some schools in GPE . ORG also endorses the idea of separate first - grade GPE - only classes for those who have not attended pre - school and are not proficient in the NORP language . Such classes do not appear to be set up to foster teaching in or of GPE language or other elements of GPE culture , but rather to assist the children to obtain basic NORP language and other skills so that they can meet the demands of the educational system . While recognising that these are valuable aims , ORG considers that pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned , and where such placing is found necessary , it should be for a limited period only .

Recommendations

GPE should fully implement the valuable educational initiatives contained in the National Programme for ORG , including those promoting increased attendance of GPE children in pre - schools . The envisaged remedial first - grade classes should , however , not be conceived a priori as GPE classes , but as classes in which individuals are placed on the basis of their skills and needs , regardless of their ethnicity .

“ The programme of pre - school education is intended to encompass as large a number of GPE children as possible and thus create the precondition for their successful entrance into the primary education system . ORG , Education and ORG has also supported the establishment of kindergartens for GPE children in cooperation with GPE NGOs , international organisations and local authorities . The responsible bodies are also helping with the enrolment of GPE pupils in institutions of secondary and higher education and are providing student grants .

By increasing the number of NORP children in pre - school education , conditions are created for their enrolment in regular primary schools . ”

The relevant parts of the report read :

“ III . Situation of the NORP community

In spite of non - discrimination on a legal plane , the treatment meted out to the GPE minority still raises anxieties since this population continues to undergo social and economic discrimination . It should nevertheless be observed that efforts have been undertaken in institutional matters especially , the government having set up a ORG chaired by the Deputy Prime Minister . Locally , and around Međimurje in particular , most districts have had water and electricity connected and are served by school transport .

NORP Segregation in schools

DATE saw the worsening of problems around the town of GPE which applied a practice of separating GPE and non - GPE pupils in schools . An atmosphere of intolerance took hold ; non - GPE parents went so far as to stage a demonstration in front of a school at the start of the DATE , denying entry to the GPE children . Under strong national and international pressure , the authorities recognised that these practices existed and undertook to review this question .

When I visited GPE , I had the opportunity to visit a primary school with a mixed enrolment . I hasten to thank the head and the staff of this school for their reception . My discussions with them satisfied me that the situation had substantially improved thanks to the commitment of all concerned . Certain difficulties still lingered , however . The PERSON region has a high proportion of GPE and schools have a large enrolment of GPE pupils who make up PERCENT of certain age bands . But these figures can not justify any segregation whatsoever between children , who must be equally treated . I sincerely hope there will be no recurrence of the events which took place in the past , and it is imperative to guarantee that the social and ethnic mix is maintained for the sake of having GPE and non - NORP children educated together in the same classes .

Difficulties over Roma pupils’ NORP language proficiency were also reported to me . I would stress the importance of putting all pupils through the same syllabus and the same teaching process in one class . Nonetheless , the knowledge gap problem is not to be evaded . As a remedy to it , it could be useful to set up at national level pre - school classes for children whose mother tongue is not NORP . That way , they will acquire a sufficient grounding in the NORP language to be able to keep up with the primary school courses later , while at the same time familiarising themselves with the school institution . In the second place , it rests with the parents to ensure the sound learning of the language and their children ’s regular attendance for the entire school course . ”

In the third section of the report , which concerns discrimination in education , the Commissioner for Human Rights noted that the fact that a significant number of GPE children did not have access to education of a similar standard to that 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 ORG member GPE . In some countries there were segregated schools in segregated settlements , in others special classes for GPE children in ordinary schools . 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 of further education and finding employment in the future . At the same time , segregated education denied both GPE and non - NORP children the chance to know each other and to learn to live as equal citizens . It excluded NORP children from mainstream society at the very beginning of their lives , increasing the risk of their being caught in the vicious circle of marginalisation .

It was also noted that special classes or special curricula for GPE had been introduced with good intentions , for the purposes of overcoming language barriers or remedying the lack of pre - school attendance of NORP children . Evidently , it was necessary to respond to such challenges , but segregation or systematic placement of NORP children in classes which followed a simplified or a special PERSON - 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 GPE 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 CARDINAL 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 .

DATE . The excerpt of the report concerning GPE reads :

“ DATE . While visiting GPE in DATE , I learned of a DATE programme , initiated in DATE , to prepare all GPE children for schools , under which children were taught various skills in the NORP language . Under ORG for DATE for ORG , special efforts to improve pre - school education for NORP children have been continued with a view to full integration in[to ] the regular school system . ... ”

The ORG provides as follows :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Considering that the aim of ORG is to achieve greater unity between its members and that this aim may be pursued , in particular , through common action in the field of education ;

Recognising that there is an urgent need to build new foundations for future educational strategies toward the Roma / Gypsy people in LOC , particularly in view of the high rates of illiteracy or semi - literacy among them , their high drop - out rate , the low percentage of students completing primary education and the persistence of features such as low school attendance ;

Noting that the problems faced by ORG in the field of schooling are largely the result of long - standing educational policies of the past , which led either to assimilation or to segregation of ORG children at school on the grounds that they were ‘ socially and culturally FAC ;

Considering that the disadvantaged position of ORG in NORP societies can not be overcome unless equality of opportunity in the field of education is guaranteed for ORG children ;

Considering that the education of ORG children should be a priority in national policies in favour of ORG ;

Bearing in mind that policies aimed at addressing the problems faced by ORG in the field of education should be comprehensive , based on an acknowledgement that the issue of schooling for ORG children is linked with a wide range of other factors and pre - conditions , namely the economic , social and cultural aspects , and the fight against racism and discrimination ;

Bearing in mind that educational policies in favour of ORG children should be backed up by an active adult education and vocational education policy ;

Recommends that in implementing their education policies the governments of the member States :

– be guided by the principles set out in the appendix to this Recommendation ;

– bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels . ”

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

“ Guiding principles of an education policy for ORG children in LOC

I. Structures

Educational policies for ORG children should be accompanied by adequate resources and the flexible structures necessary to meet the diversity of the ORG population in LOC and which take into account the existence of ORG groups which lead an itinerant or semi - itinerant lifestyle . In this respect , it might be envisaged having recourse to distance education , based on new communication technologies .

Emphasis should be put on the need to better coordinate the international , national , regional and local levels in order to avoid dispersion of efforts and to promote synergies .

To this end member GPE should make the ministries of education sensitive to the question of education of ORG children .

NORP In order to secure access to school for ORG children , pre - school education schemes should be widely developed and made accessible to them .

Particular attention should also be paid to the need to ensure better communication with parents , where necessary using mediators from the ORG community which could then lead to specific career possibilities . Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families . There has to be mutual understanding between parents and schools . The GPE exclusion and lack of knowledge and education ( even illiteracy ) also prevent children from benefiting from the education system .

Appropriate support structures should be set up in order to enable ORG children to benefit , in particular through positive action , from equal opportunities at school .

NORP The member States are invited to provide the necessary means to implement the above - mentioned policies and arrangements in order to close the gap between ORG pupils and majority pupils .

II . Curriculum and teaching material

Educational policies in favour of ORG children should be implemented in the framework of broader intercultural policies , taking into account the particular features of the NORP culture and the disadvantaged position of many Roma / Gypsies in the member GPE .

The curriculum , on the whole , and the teaching material should therefore be designed so as to take into account the cultural identity of ORG children . PERSON history and culture should be introduced in the teaching material in order to reflect the cultural identity of ORG children . The participation of representatives of ORG community should be encouraged in the development of teaching material on the history , culture or language of the Roma / Gypsies .

NORP However , the member GPE should ensure that this does not lead to the establishment of separate curricula , which might lead to the setting up of separate classes .

NORP The member GPE should also encourage the development of teaching material based on good practices in order to assist teachers in their DATE work with ORG pupils .

NORP In the countries where the NORP language is spoken , opportunities to learn in the mother tongue should be offered at school to ORG children .

III . Recruitment and training of teachers

It is important that future teachers should be provided with specific knowledge and training to help them understand better their ORG pupils . The education of ORG pupils should however remain an integral part of the general educational system .

The Roma / Gypsy community should be involved in the designing of such curricula and should be directly involved in the delivery of information to future teachers .

Support should also be given to the training and recruitment of teachers from within the Roma / Gypsy community .

The relevant parts of the Recommendation read :

“ ORG ...

Recommends that the governments of member GPE , with due regard for their constitutional structures , national or local situations and educational systems :

b. elaborate , disseminate and implement education policies focusing on ensuring non - discriminatory access to quality education for GPE and NORP children , based on the orientations set out in the appendix to this recommendation ;

d. ensure , through local and regional authorities , that GPE and NORP children are effectively accepted in school ;

The relevant sections of the Appendix to Recommendation CM / Rec(CARDINAL)CARDINAL read as follows .

“ I. Principles of policies

Member GPE should ensure that legal measures are in place to prohibit segregation on racial or ethnic grounds in education , with effective , proportionate and dissuasive sanctions , and that the law is effectively implemented . Where de facto segregation of GPE and NORP children based on their racial or ethnic origin exists , authorities should implement desegregation measures . Policies and measures taken to fight segregation should be accompanied by appropriate training of educational staff and information for parents .

Educational authorities should set up assessment procedures that do not result in risks of enrolling children in special education institutions based on linguistic , ethnic , cultural or social differences but facilitate access to schooling . ORG representatives should be involved in defining and monitoring these procedures .

II . Structures and provision for access to education

Roma and Travellers should be provided with unhindered access to mainstream education at all levels subject to the same criteria as the majority population . To accomplish this goal , imaginative and flexible initiatives should be taken as required in terms of educational policy and practice . Appropriate measures should also be taken to ensure equal access to educational , cultural , linguistic and vocational opportunities offered to all learners , with particular attention to GPE and NORP girls and women .

Attendance of pre - school education for GPE and NORP children should be encouraged , under equal conditions as for other children , and enrolment in pre - school education should be promoted if necessary by providing specific support measures .

III . Curriculum , teaching material and teacher training

Educational authorities should ensure that all teachers , and particularly those working in ethnically mixed classes , receive specialised training on intercultural education , with a special regard to ORG . Such training should be included in officially recognised programmes and should be made available in various forms , including distance and online learning , summer schools , etc .

Teachers working directly with ORG children should be adequately supported by ORG mediators or assistants and should be made aware that they need to engage ORG children more in all educational activities and not de - motivate them by placing lower demands upon them and encourage them to develop their full potential .

ORG made , inter alia , the following general observations :

“ CARDINAL . CARDINAL of the aims of ORG is to promote the emergence of a genuine NORP cultural identity . LOC harbours many different cultures , all of them , including the many minority cultures , enriching and contributing to the cultural diversity of LOC .

A special place among the minorities is reserved for NORP . Living scattered all over LOC , not having a country to call their own , they are a true NORP minority , but one that does not fit into the definitions of national or linguistic minorities .

As a non - territorial minority , NORP greatly contribute to the cultural diversity of LOC . In different parts of LOC they contribute in different ways , be it by language and music or by their trades and crafts .

NORP With central and east NORP countries now member GPE , the number of NORP living in the area of ORG has increased drastically .

Intolerance of Gypsies by others has existed throughout the ages . Outbursts of racial or social hatred , however , occur more and more regularly , and the strained relations between communities have contributed to the deplorable situation in which the majority of NORP lives today .

Respect for the rights of NORP , individual , fundamental and human rights and their rights as a minority , is essential to improve their situation .

Guarantees for equal rights , equal chances , equal treatment , and measures to improve their situation will make a revival of PERSON language and culture possible , thus enriching the NORP cultural diversity .

The guarantee of the enjoyment of the rights and freedoms set forth in LAW is important for NORP as it enables them to maintain their individual rights .

As far as education is concerned , the ORG states :

“ vi . the existing NORP programmes for training teachers of NORP should be extended ;

viii . talented young NORP should be encouraged to study and to act as intermediaries for NORP ;

This Recommendation states , inter alia :

DATE Roma are still subjected to discrimination , marginalisation and segregation . Discrimination is widespread in every field of public and personal life , including access to public places , education , employment , health services and housing , as well as crossing borders and access to asylum procedures . Marginalisation and the economic and social segregation of GPE are turning into ethnic discrimination , which usually affects the weakest social groups .

Roma form a special minority group , in so far as they have a double minority status . They are an ethnic community and most of them belong to the socially disadvantaged groups of society .

ORG can and must play an important role in improving the legal status , the level of equality and the living conditions of GPE . The ORG calls upon the member ORG to complete the CARDINAL general conditions , which are necessary for the improvement of the situation of GPE in LOC :

c. to guarantee equal treatment for the NORP minority as an ethnic or national minority group in the field of education , employment , housing , health and public services . Member GPE should give special attention to :

i. promoting equal opportunities for GPE on the labour market ;

ii . providing the possibility for Romany students to participate in all levels of education from kindergarten to university ;

iii . developing positive measures to recruit GPE in public services of direct relevance to GPE communities , such as primary and secondary schools , social welfare centres , local primary health care centres and local administration ;

d. to develop and implement positive action and preferential treatment for the socially deprived strata , including GPE as a socially disadvantaged community , in the field of education , employment and housing ...

e. to take specific measures and create special institutions for the protection of the Romany language , culture , traditions and identity :

ii . to encourage Romany parents to send their children to primary school , secondary school and higher education , including college or university , and give them adequate information about the necessity of education ;

v. to recruit GPE teaching staff , particularly in areas with a large NORP population ;

PERSON to combat racism , xenophobia and intolerance and to ensure non - discriminatory treatment of GPE at local , regional , national and international levels :

vi . to pay particular attention to the phenomenon of discrimination against GPE , especially in the fields of education and employment ;

The relevant sections of this Recommendation state :

“ ORG against Racism and Intolerance :

Recalling that combating racism , xenophobia , anti - Semitism and intolerance forms an integral part of the protection and promotion of human rights , that these rights are universal and indivisible , and that all human beings , without any distinction whatsoever , are entitled to these rights ;

Noting that ORG suffer throughout LOC from persisting prejudices , are victims of a racism which is deeply rooted in society , are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened ;

Noting also that the persisting prejudices against ORG lead to discrimination against them in many fields of social and economic life , and that such discrimination is a major factor in the process of social exclusion affecting many Roma / Gypsies ;

recommends the following to governments of member PERSON :

– to ensure that discrimination as such , as well as discriminatory practices , are combated through adequate legislation and to introduce into civil law specific provisions to this end , particularly in the fields of employment , housing and education ;

– to vigorously combat all forms of school segregation towards ORG children and to ensure the effective enjoyment of equal access to education ;

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

“ ( a ) ’racism’ shall mean the belief that a ground such as race , colour , language , religion , nationality or national or ethnic origin justifies contempt for a person or a group of persons , or the notion of superiority of a person or a group of persons .

( b ) NORP racial discrimination’ shall mean any differential treatment based on a ground such as race , colour , language , religion , nationality or national or ethnic origin , which has no objective and reasonable justification . Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised .

( c ) ORG racial discrimination’ shall mean cases where an apparently neutral factor such as a provision , criterion or practice can not be as easily complied with by , or disadvantages , persons belonging to a group designated by a ground such as race , colour , language , religion , nationality or national or ethnic origin , unless this factor has an objective and reasonable justification . This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised . ”

In the explanatory memorandum to this Recommendation , it is noted ( point CARDINAL) that the definitions of “ direct ” and “ indirect ” racial discrimination contained in paragraph CARDINAL ( b ) and ( c ) of the Recommendation draw inspiration from those contained in ORG CARDINAL/CARDINAL/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in ORG CARDINAL establishing a general framework for equal treatment in employment and occupation and on the case - law of ORG .

Article CARDINAL of the LAW provides :

“ All persons are equal before the law and are entitled without any discrimination to the equal protection of the law . In this respect , the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status . ”

NORP In points CARDINAL and CARDINAL of its General Comment No . CARDINAL of DATE on non - discrimination , the ORG expressed the following opinion :

“ CARDINAL . ... the ORG believes that the term ‘ discrimination’ as used in the LAW should be understood to imply any distinction , exclusion , restriction or preference which is based on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status , and which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise by all persons , on an equal footing , of all rights and freedoms .

NORP ... when legislation is adopted by ORG , it must comply with the requirement of LAW that its content should not be discriminatory . ... ”

NORP CARDINAL of its Views dated DATE on Communication no . CARDINAL concerning GPE , the ORG noted :

“ ... ORG is of the view , however , that the intent of the legislature is not alone dispositive in determining a breach of LAW . A politically motivated differentiation is unlikely to be compatible with LAW . But an act which is not politically motivated may still contravene LAW if its effects are discriminatory . ”

The relevant part of LAW provides :

“ ... the term ‘ racial discrimination’ shall mean any distinction , exclusion , restriction or preference based on race , colour , descent , or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise , on an equal footing , of human rights and fundamental freedoms in the political , economic , social , cultural or any other field of public life .

In its ORG . DATE on the definition of discrimination , the ORG noted , inter alia :

“ CARDINAL . ... A distinction is contrary to the [ FAC on the Elimination of All Forms of Racial Discrimination ] if it has either the purpose or the effect of impairing particular rights and freedoms . This is confirmed by the obligation placed upon GPE parties by LAW ) to nullify any law or practice which has the effect of creating or perpetuating racial discrimination . ...

NORP ... In seeking to determine whether an action has an effect contrary to the [ FAC on the Elimination of All Forms of Racial Discrimination ] , [ the ORG ] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race , colour , descent , or national or ethnic origin . ”

NORP In its FAC . CARDINAL of DATE on racial segregation and apartheid , the ORG observed :

“ CARDINAL . ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies , a condition of partial segregation may also arise as an unintended by - product of the actions of private persons . In many cities residential patterns are influenced by group differences in income , which are sometimes combined with differences of race , colour , descent and national or ethnic origin , so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds .

The ORG therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities . ... ”

In its ORG . CARDINAL of DATE on discrimination against ORG made , inter alia , the following recommendation in the education sphere :

“ CARDINAL . To support the inclusion in the school system of all children of GPE origin and to act to reduce drop - out rates , in particular among GPE girls , and , for these purposes , to cooperate actively with GPE parents , associations and local communities .

To prevent and avoid as much as possible the segregation of GPE students , while keeping open the possibility for bilingual or mother - tongue tuition ; to this end , to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community , to recruit school personnel from among members of ORG and to promote intercultural education .

To consider adopting measures in favour of GPE children , in cooperation with their parents , in the field of education . ”

In its concluding observations of CARDINAL DATE following its examination of the report submitted by GPE , the ORG noted , inter alia :

“ CARDINAL . The marginalisation of the GPE community in the field of education is noted with concern . Evidence that a disproportionately large number of GPE children are placed in special schools , leading to de facto racial segregation , and that they also have a considerably lower level of participation in secondary and higher education , raises doubts about whether LAW ] is being fully implemented . ”

The relevant parts of ORG CARDINAL and CARDINAL of this Convention provide as follows .

“ CARDINAL . DATE 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 .

“ In those GPE 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 . ”

The relevant part of DATE provides :

“ CARDINAL . States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law .

Articles CARDINAL and CARDINAL of ORG in Education of DATE provide in their relevant parts as follows .

“ CARDINAL . For the purposes of this Convention , the term ‘ discrimination’ includes any distinction , exclusion , limitation or preference which , being based on race , colour , sex , language , religion , political or other opinion , national or social origin , economic condition or birth , has the purpose or effect of nullifying or impairing equality of treatment in education and in particular :

( a ) Of depriving any person or group of persons of access to education of any type or at any level ;

( b ) Of limiting any person or group of persons to education of an inferior standard ;

( c ) ORG to the provisions of LAW , of establishing or maintaining separate educational systems or institutions for persons or groups of persons ; or

( d ) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man .

“ In order to eliminate and prevent discrimination within the meaning of this Convention , the GPE Parties thereto undertake :

( a ) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education ;

( b ) To ensure , by legislation where necessary , that there is no discrimination in the admission of pupils to educational institutions ;