CASE OF D.H. AND OTHERS v. THE CZECH REPUBLIC

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 14+P1-2;General measures refused;Non-pecuniary damage - financial award;Costs and expenses partial award

Alvina Gyulumyan;András Baka;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Kristaq Traja;Margarita Tsatsa-Nikolovska;Mark Villiger;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky;Volodymyr Butkevych

Details of the applicants’ names and places of residence are set out in the LOC .

According to documents available on the website of ORG of ORG , the GPE originated from the regions situated between north - west GPE and LOC . The first written traces of their arrival in LOC date back to DATE . DATE there are CARDINAL GPE living in LOC . They are to be found in almost all ORG member GPE and indeed , in some central and east NORP countries , they represent PERCENT of the population . The majority of them speak Romany , an NORP language that is understood by a very large number of GPE in LOC , despite its many variants . In general , GPE also speak the dominant language of the region in which they live , or even several languages .

Although they have been in LOC since DATE , often they are not recognised by the majority of society as a fully fledged NORP people and they have suffered throughout their history from rejection and persecution . This culminated in their attempted extermination by the NORP , who considered them an inferior race . As a result of DATE of rejection , many GPE communities DATE live in very difficult conditions , often on the fringe of society in the countries where they have settled , and their participation in public life is extremely limited .

In GPE the Roma have national - minority status and , accordingly , enjoy the special rights associated therewith . ORG of the Government of GPE , a governmental consultative body without executive power , has responsibility for defending the interests of the national minorities , including the GPE .

As to the number of GPE currently living in GPE , there is a discrepancy between the official , census - based , statistics and the estimated number . According to the latter , which is available on the website of ORG of GPE , the GPE community now numbers CARDINAL people .

According to information supplied by ORG , the special schools ( zvláštní školy ) were established after the First World War for children with special needs , including those suffering from a mental or social handicap . The number of children placed in these schools continued to rise ( from CARDINAL pupils in DATE to CARDINAL in DATE ) . Owing to the entrance requirements of the primary schools ( základní školy ) and the resulting selection process , prior to DATE most GPE children attended special schools .

Under the terms of LAW ( Law no . CARDINAL/CARDINAL ) , the legislation applicable in the present case , special schools were a category of specialised school ( speciální školy ) and were intended for children with mental deficiencies who were unable to attend “ ordinary ” or specialised primary schools . Under LAW , the decision to place a child in a special school was taken by the head teacher on the basis of the results of tests to measure the child ’s intellectual capacity carried out in an educational psychology centre and was subject to the consent of the child ’s legal guardian .

Following the switch to the market economy in DATE , a number of changes were made to the system of special schools in GPE . These changes also affected the education of GPE pupils . In DATE ORG issued a directive concerning the provision of additional lessons for pupils who had completed their compulsory education in a special school . Since the DATE , preparatory classes for children from disadvantaged social backgrounds have been opened in nursery , primary and special schools . In DATE ORG approved an alternative educational curriculum for children of GPE origin who had been placed in special schools . GPE teaching assistants were also assigned to primary and special schools to assist the teachers and facilitate communication with the families . By virtue of amendment no . CARDINAL to GPE , which came into force on DATE , pupils who had completed their compulsory education in a special school were also eligible for admission to secondary schools , provided they satisfied the entrance requirements for their chosen course .

According to data supplied by the applicants , which was obtained through questionnaires sent in DATE to the head teachers of the CARDINAL special schools and CARDINAL primary schools in the town of GPE , the total number of pupils placed in special schools in PERSON came to CARDINAL , of whom CARDINAL ( PERCENT ) were GPE . Conversely , GPE represented PERCENT of the total of CARDINAL primary - school pupils in PERSON . Further , although PERCENT of non - GPE pupils were placed in special schools , in PERSON the proportion of GPE pupils assigned to such schools was PERCENT . Accordingly , a GPE child in PERSON was CARDINAL times more likely to be placed in a special school than a non - GPE child .

According to data from ORG on Racism and Xenophobia ( now ORG for Fundamental Rights ) , CARDINAL of GPE children in GPE attend special schools .

ORG on LAW observed in its report of DATE that , according to unofficial estimates , the GPE represent PERCENT of pupils enrolled in special schools .

Lastly , according to a comparison of data on CARDINAL countries , including countries from LOC , LOC and LOC , gathered by ORG in DATE and cited in the observations of the International Step by Step Association , ORG and ORG , GPE ranked second highest in terms of placing children with physiological impairments in special schools and in third place in the table of countries placing children with learning difficulties in such schools . Further , of the CARDINAL countries who had provided data on the schooling of children whose difficulties arose from social factors , GPE was the only one to use special schools ; the other countries concerned almost exclusively used ordinary schools for the education of such children .

DATE the applicants were placed in special schools in PERSON , either directly or after a spell in an ordinary primary school .

The material before the ORG shows that the applicants’ parents had consented to and in some instances expressly requested their children ’s placement in a special school . ORG was indicated by signing a pre - completed form . In the case of applicants nos . CARDINAL and DATE , the dates on the forms are later than the dates of the decisions to place the children in special schools . In both instances , the date has been corrected by hand , and CARDINAL of them is accompanied by a note from the teacher citing a typing error .

The decisions on placement were then taken by the head teachers of the special schools concerned after referring to the recommendations of the educational psychology centres where the applicants had undergone psychological tests . The applicants’ school files contained the report on their examination , including the results of the tests with the ORG comments , drawings by the children and , in a number of cases , a questionnaire for the parents .

The written decision concerning the placement was sent to the children ’s parents . It contained instructions on the right to appeal , a right which none of them exercised .

On DATE the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a primary school . It would appear that CARDINAL of the applicants ( nos . CARDINAL , DATE , DATE and DATE in the FAC ) were successful in aptitude tests and thereafter attended ordinary schools .

In the review and appeals procedures referred to below , the applicants were represented by a lawyer acting on the basis of signed written authorities from their parents .

On DATE all the applicants apart from those numbered CARDINAL , CARDINAL , DATE and CARDINAL in the ORG asked ORG ( Školský úřad ) to reconsider , outside the formal appeal procedure ( přezkoumání mimo odvolací řízení ) , the administrative decisions to place them in special schools . They argued that their intellectual capacity had not been reliably tested and that their representatives had not been adequately informed of the consequences of consenting to their placement in special schools . They therefore asked ORG to revoke the impugned decisions , which they maintained did not comply with the statutory requirements and infringed their right to education without discrimination .

On DATE ORG informed the applicants that , as the impugned decisions complied with the legislation , the conditions for bringing proceedings outside the appeal procedure were not satisfied in their case .

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

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

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

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

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

In their final written submissions , the applicants pointed out ( i ) that there was nothing in their school files to show that their progress was being regularly monitored with a view to a possible transfer to primary school , ( ii ) that the reports from the educational psychology centres contained no information on the tests that were used , and ( iii ) that their recommendations for placement in a special school were based on grounds such as an insufficient command of the NORP language , an over - tolerant attitude on the part of the parents or an ill - adapted social environment , etc . They also argued that the gaps in their education made a transfer to primary school impossible in practice and that social or cultural differences could not justify the alleged difference in treatment .

On DATE ORG dismissed the ORG appeal , partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it . It nevertheless invited the competent authorities to give careful and constructive consideration to the ORG proposals .

( a ) With regard to the complaint of a violation of the applicants’ rights as a result of their placement in special schools , ORG held that , CARDINAL decisions had actually been referred to in the notice of appeal , it had no jurisdiction to decide the cases of those applicants who had not appealed against the decisions concerned .

As to the CARDINAL applicants who had lodged constitutional appeals against the decisions to place them in special schools ( nos . CARDINAL , CARDINAL , DATE , DATE and DATE in the FAC ) , ORG decided to disregard the fact that they had not lodged ordinary appeals against those decisions , as it agreed that the scope of their constitutional appeals went beyond their personal interests . However , it found that there was nothing in the material before it to show that the relevant statutory provisions had been interpreted or applied unconstitutionally , since the decisions had been taken by head teachers vested with the necessary authority on the basis of recommendations by educational psychology centres and with the consent of the ORG representatives .

( b ) With regard to the complaints of insufficient monitoring of the applicants’ progress at school and of racial discrimination , ORG noted that it was not its role to assess the overall social context and found that the applicants had not furnished concrete evidence in support of their allegations . It further noted that the applicants had had a right of appeal against the decisions to place them in special schools , but had not exercised it . As to the objection that insufficient information had been given about the consequences of placement in a special school , ORG considered that the ORG representatives could have obtained this information by liaising with the schools and that there was nothing in the file to indicate that they had shown any interest in transferring to a primary school . ORG therefore ruled that this part of the appeal was manifestly ill - founded .

Prior to DATE , section CARDINAL ) of the Schools Act provided that to be eligible for secondary - school education pupils had to have successfully completed their primary - school education .

Following amendment no . CARDINAL/CARDINAL , which came into force on DATE , the amended section CARDINAL(CARDINAL ) provided that to be eligible for secondary - school education pupils had to have completed their compulsory education and demonstrated during the admission procedure that they satisfied the conditions of eligibility for their chosen course .

Section CARDINAL(CARDINAL ) provided that special schools were intended for children with “ mental deficiencies ” ( rozumové nedostatky ) that prevented them from following the curricula in ordinary primary schools or in specialised primary schools ( speciální základní škola ) intended for children suffering from sensory impairment , illness or disability .

This new LAW on school education no longer provides for special schools in the form that had existed prior to its entry into force . Primary education is now provided by primary schools and specialised primary schools , the latter being intended for pupils with severe mental disability or multiple disabilities and for autistic children .

Section CARDINAL contains provisions governing the education of children and pupils with special educational needs . These are defined in subsection CARDINAL as children suffering from a disability , health problems or a social disadvantage . LAW ) provides that for the purposes of the LAW a child is socially disadvantaged , inter alia , if it comes from a family environment with low socio - cultural status or at risk of socio - pathological phenomena . Subsection CARDINAL provides that the existence of special educational needs is to be assessed by an educational guidance centre .

The Act also makes provision , inter alia , for educational assistants , individualised education projects , preparatory classes for socially disadvantaged children prior to the period of compulsory school education and additional lessons for pupils who have not received a basic education .

LAW laid down that the following schools were available for pupils suffering from mental disability : specialised nursery schools ( speciální mateřské školy ) , special schools , auxiliary schools ( pomocné školy ) , vocational training centres ( odborná učiliště ) and practical training schools ( praktické školy ) .

Article CARDINAL § CARDINAL stipulated that if during the pupil ’s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability , the head teacher of the school attended by the pupil was required , after an interview with the pupil ’s representative , to recommend the pupil ’s placement in another specialised school or an ordinary school .

Article CARDINAL § CARDINAL stipulated that the decision to place a pupil in or transfer a pupil to , inter alia , a special school was to be taken by the head teacher , provided that the pupil ’s legal guardians consented . Article QUANTITY provided that a proposal for a pupil to be placed , inter alia , in a special school could be made to the head teacher by the pupil ’s legal guardian , the pupil ’s current school , an educational psychology centre , a hospital or clinic , an authority with responsibility for family and child welfare , a health centre , etc . In the event of the pupil not receiving a place in a special school , the head teacher was required by LAW to notify the pupil ’s legal guardian and the competent school authority or the municipality in which the pupil was permanently resident of the decision . The education authority was then required , after consulting the municipality , to make a proposal regarding the school in which the pupil would receive his or her compulsory education . LAW required the educational psychology centre to assemble all the documents relevant to the decision and to make a recommendation to the head teacher regarding the type of school .

DATE LAW provides that pupils and students with special educational needs are to be educated with the help of support measures that go beyond or are different from the individualised educational and organisational measures available in ordinary schools .

Article CARDINAL provides that children whose special educational needs have been established with the aid of an educational or psychological examination performed by an educational guidance centre will receive special schooling if they have clear and compelling needs that warrant their placement in a special education system .

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

According to the applicants , who cited experts in this field , the most commonly used tests appeared to be variants of ORG ( ORG and ORG ) and the ORG intelligence test . Citing various opinions , including those of teachers and psychologists and the Head of ORG at ORG in DATE , the applicants submitted that the tests used were neither objective nor reliable , as they had been devised solely for NORP children , and had not recently been standardised or approved for use with NORP children . Moreover , no measures had been taken to enable GPE children to overcome their cultural and linguistic disadvantages in the tests . Nor had any instructions been given to restrict the latitude that was given in the administration of the tests and the interpretation of the results . The applicants also drew attention to a DATE report in which ORG noted that children without any significant mental deficiencies were still being placed in special schools .

In the report submitted by GPE on DATE pursuant to LAW , it was noted that the psychological tests “ are conceived for the majority population and do not take Romany specifics into consideration ” .

ORG on LAW noted in its first report on GPE , which was published on DATE , that while these schools were designed for mentally handicapped children it appeared that many NORP children who were not mentally handicapped were placed in them owing to real or perceived language and cultural differences between GPE and the majority . ORG stressed that “ placing children in such special schools should take place only when it is absolutely necessary and always on the basis of consistent , objective and comprehensive tests ” .

In its second report on GPE published on DATE ORG observed : “ Tests and methods used to assess children ’s intellectual abilities upon school enrolment have already been revised with a view to ensuring that they are not misused to the detriment of NORP children . ” However , it noted with concern that “ revision of the psychological tests used in this context has not had a marked impact . According to unofficial estimates , GPE account for PERCENT of pupils in [ special ] schools , and DATE having regard to the percentage of GPE in the population – raises doubts concerning the ORG validity and the relevant methodology followed in practice ” .

In its report on GPE published on DATE , ORG against Racism and Intolerance ( ECRI ) noted that channelling of GPE children to special schools was reported to be often quasi - automatic . According to ORG , the poor results obtained by these children in the pre - school aptitude tests could be explained by the fact that in GPE most GPE children did not attend kindergarten education . ECRI therefore considered that the practice of channelling ORG children into special schools for those with mental retardation should be fully examined , to ensure that any testing used was fair and that the true abilities of each child were properly evaluated .

In its next report on GPE , which was published in DATE , ORG noted that the test developed by ORG for assessing a child ’s mental level was not mandatory , and was CARDINAL of a battery of tools and methods recommended to the educational guidance centres .

In his final report on the human rights situation of the GPE , PERSON and Travellers in LOC of DATE , the Commissioner for Human Rights observed : “ NORP children are frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment , the real criteria clearly being their ethnic origin . ”

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

It is alleged in the observations that the assessment used to place GPE children in special schools in the PERSON region ran contrary to effective assessment indicators that were well known by DATE , for example , those published in DATE by ORG ) . These indicators were now associated with ORG for ORG , which included member organisations in LOC and , more particularly , GPE . Relevant indicators included : ethical principles to guide assessment practices ; the use of assessment instruments for their intended purposes and in such a way as to meet professional quality criteria ; assessments appropriate to the ages and other characteristics of the children being assessed ; recognition of the developmental and educational significance of the subject matter of the assessment ; the use of assessment evidence to understand and improve learning ; the gathering of assessment evidence from realistic settings and in situations that reflected children ’s actual performance ; the use of multiple sources of evidence gathered over time for assessments ; the existence of a link between screening and follow - up ; limitations on the use of individually administered , norm - referenced tests ; and adequate information for staff and families involved in the assessment process .

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

According to studies cited in these observations ( ORG ( DATE ) ; ORG ( DATE ) , Denied a future ? The right to education of ORG and NORP children ; PERSON and PERSON ( DATE ) , Introduction : Racial inequity in special education , GPE , ORG : ORG ) , disproportionately placing certain groups of students in special education resulted from an array of factors , including “ unconscious racial bias on the part of school authorities , large resource inequalities , an unjustifiable reliance on IQ and other evaluation tools , educators’ inappropriate responses to the pressures of high - stakes testing , and power differentials between minority parents and school officials ” . Thus , school placement through psychological testing often reflected racial biases in the society concerned .

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

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

In its report on GPE published in DATE , ORG observed that GPE parents often favoured the channelling of GPE children to special schools , partly to avoid abuse from non - NORP children in ordinary schools and isolation of the child from other neighbourhood GPE children , and partly owing to a relatively low level of interest in education .

In its report on GPE published in DATE , ORG noted that when deciding whether or not to give their consent parents of NORP children continued “ to lack information concerning the long - term negative consequences of sending their children to such schools ” , which were “ often presented to parents as an opportunity for their children to receive specialised attention and be with other GPE children ” .

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

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

Further , LAW no . CARDINAL stipulated that , if during the pupil ’s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability , the head teacher of the school attended by the child or pupil was required , after an interview with the pupil ’s guardian , to recommend the pupil ’s placement in another specialised school or in an ordinary school .

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

ORG on LAW noted in its second report on GPE , which was published on DATE , that placement in a special school “ makes it more difficult for GPE children to gain access to other levels of education , thus reducing their chances of integrating in the society . Although legislation no longer prevents children from advancing from ‘ special’ to ordinary secondary schools , the level of education offered by ‘ NORP schools generally does not make it possible to cope with the requirements of secondary schools , with the result that most drop out of the system ” .

According to the observations submitted by the International Step by Step Association , ORG and ORG , the placement of children in segregated special schools was an example of a very early “ tracking ” of students , in this case by assigning children perceived to be of “ low ability ” or “ low potential ” to special schools from DATE . Such practices increased educational inequity as they had especially negative effects on the achievement levels of disadvantaged children ( see , inter alia , the FAC from the Commission of ORG to the ORG and to ORG on efficiency and equity in NORP education and training systems ( ORG , DATE ) ) . The longer - term consequences of “ tracking ” included pupils being channelled towards less prestigious forms of education and training and pupils dropping out of school early . ORG could thus help create a social construction of failure .

In their observations to the ORG , the organisations ORG , ORG Racism and ORG noted that children in special schools followed a simplified curriculum that was considered appropriate for their lower level of development . Thus , in GPE , children in special schools were not expected to know the alphabet or numbers up to CARDINAL until DATE of school , while their counterparts in ordinary schools acquired that knowledge in DATE .

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 ORG 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 .

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 ;

vii . special attention should be paid to the education of women in general and mothers together with their younger children ;

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 ;

iv . eradicating all practices of segregated schooling for Romany children , particularly that of routing NORP children to schools or classes for the mentally disabled ;

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 the 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 , antisemitism 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 ;

Stressing that combating racism , xenophobia , antisemitism and intolerance is above all a matter of protecting the rights of vulnerable members of society ;

Convinced that in any action to combat racism and discrimination , emphasis should be placed on the victim and the improvement of his or her situation ;

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 ;

Convinced that the promotion of the principle of tolerance is a guarantee of the preservation of open and pluralistic societies allowing for a peaceful coexistence ;

recommends the following to ORG 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 :

“ CARDINAL ) ’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 .

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

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

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

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

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

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

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

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

GPE accepted that the GPE were particularly exposed to discrimination and social exclusion and said that it was preparing to introduce comprehensive anti - discrimination tools associated with the implementation of ORG implementing the principle of equal treatment . New legislation was due to be enacted in DATE ( the LAW no . DATE , was passed on DATE and came into force on DATE ) .

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

The report also cited a number of projects and programmes that had been implemented nationally in this sphere ( Support for GPE integration , ORG education reform , and PERSON special - school pupils in primary schools ) .

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

The special schools had led to a high level of separation of GPE pupils from others and to a low level of educational skills in the GPE community . This was recognised by the NORP authorities . Both governmental and civil society actors agreed on the need for a major reform . There was however disagreement about the precise nature of the reform to be carried out , the amount of resources to be made available and the speed with which reforms were to be implemented . ORG was of the opinion that the NORP authorities ought to develop the reform , in consultation with the persons concerned , so as to ensure equal opportunities for access to schools for GPE children and equal rights to an ordinary education , in accordance with the principles set out in ORG . R ( DATE ) CARDINAL on the education of ORG children in LOC .

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

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

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

ORG noted , however , that although constant monitoring and evaluation of the school situation of GPE children was one of the government ’s priorities the relevant report submitted by GPE said little about the extent to which they were currently integrated in schools , or the effectiveness and impact of the many measures that had been taken for them . It noted with concern that the measures had produced few improvements and that local authorities did not systematically implement the government ’s school support scheme and did not always have the determination needed to act effectively in this field .

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

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

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

In the third section of the report , which concerns discrimination in education , the Commissioner for Human Rights noted that the fact that a significant number of GPE children did not have access to education of a similar standard enjoyed by other children was in part a result of discriminatory practices and prejudices . In that connection , he noted that segregation in education was a common feature in many ORG member GPE . In some countries there were segregated schools in segregated settlements , in others special classes for GPE children in ordinary schools or a clear over - representation of NORP children in classes for children with special needs . NORP children were frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment , the real criteria clearly being their ethnic origin . Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes , which diminished their opportunities for further education and for finding employment in the future . The automatic placement of NORP children in classes for children with special needs was likely to increase the stigma by labelling the NORP children as less intelligent and less capable . At the same time , segregated education denied both the GPE and non - GPE 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 .

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

It was also noted that special classes or special curricula for the ORG had been introduced with good intentions , for the purposes of overcoming language barriers or remedying the lack of pre - school attendance of GPE 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 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 .

The principle prohibiting discrimination or requiring equality of treatment is well established in a large body of Community law instruments based on LAW establishing ORG . This provision enables the ORG , through a unanimous decision following a proposal / recommendation by the ORG and consultation of ORG , to take the measures necessary to combat discrimination based on sex , race or ethnic origin , religion or belief , disability , age or sexual orientation .

Thus , LAW DATE on the burden of proof in cases of discrimination based on sex provides that “ indirect discrimination shall exist where an apparently neutral provision , criterion or practice disadvantages a substantially higher proportion of the members of CARDINAL sex unless that provision , criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex ” . LAW , which concerns the burden of proof , reads : “ Member GPE shall take such measures as are necessary , in accordance with their national judicial systems , to ensure that , when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish , before a court or other competent authority , facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment . ”

Similarly , the aim of Council Directives CARDINAL/CARDINAL/EC of DATE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and CARDINAL of DATE establishing a general framework for equal treatment in employment and occupation is to prohibit in their respective spheres all direct or indirect discrimination based on race , ethnic origin , religion or belief , disability , age or sexual orientation . The preambles to these ORG state as follows : “ The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies , in accordance with rules of national law or practice . Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence ” and “ The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and , for the principle of equal treatment to be applied effectively , the burden of proof must shift back to the respondent when evidence of such discrimination is brought . ”

NORP In particular , Directive CARDINAL/CARDINAL/EC provides as follows :

“ CARDINAL . For the purposes of this Directive , the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin .

For the purposes of paragraph CARDINAL :

( a ) NORP direct discrimination shall be taken to occur where CARDINAL person is treated less favourably than another is , has been or would be treated in a comparable situation on grounds of racial or ethnic origin ;

( b ) NORP indirect discrimination shall be taken to occur where an apparently neutral provision , criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons , unless that provision , criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary .

“ CARDINAL . Member GPE shall take such measures as are necessary , in accordance with their national judicial systems , to ensure that , when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish , before a court or other competent authority , facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment .

Paragraph CARDINAL shall not prevent Member GPE from introducing rules of evidence which are more favourable to plaintiffs .

Paragraph CARDINAL shall not apply to criminal procedures .

Member GPE need not apply paragraph CARDINAL to proceedings in which it is for the court or competent body to investigate the facts of the case . ”

Under the case - law of ORG of ORG ) , discrimination , which entails the application of different rules to comparable situations or the application of the same rule to different situations , may be overt or covert and direct or indirect .

In its PERSON v. PERSON judgment of CARDINAL DATE ( Case DATE , point CARDINAL ) , the ORG stated :

“ The rules regarding equality of treatment ... forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which , by the application of other criteria of differentiation , lead in fact to the same result .

In its ORG - PERSON v. PERSON judgment of CARDINAL DATE ( Case DATE ) , it stated :

“ ... LAW is infringed by a department store company which excludes part - time employees from its occupational pension scheme , where that exclusion affects a far greater number of women than men , unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex . ”

In GPE v. Secretary of ORG , ex parte PERSON and PERSON ( judgment of DATE , Case ORG , points CARDINAL , DATE , DATE , DATE and DATE ) , the ORG observed :

“ ... the national court seeks to ascertain the legal test for establishing whether a measure adopted by a Member ORG has disparate effect as between men and women to such a degree as to amount to indirect discrimination . ...

... the ORG proposes a ‘ statistically significant’ test , whereby statistics must form an adequate basis of comparison and the national court must ensure that they are not distorted by factors specific to the case . The existence of statistically significant evidence is enough to establish disproportionate impact and pass the onus to the author of the allegedly discriminatory measure .

It is also for the national court to assess whether the statistics concerning the situation ... are valid and can be taken into account , that is to say , whether they cover enough individuals , whether they illustrate purely fortuitous or short - term phenomena , and whether , in general , they appear to be significant ( see Case C-CARDINAL/CARDINAL Enderby [ DATE ] ORG , paragraph CARDINAL ) . ...

Accordingly , ... in order to establish whether a measure adopted by a Member ORG has disparate effect as between men and women to such a degree as to amount to indirect discrimination for the purposes of LAW , the national court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by that measure . If that is the case , there is indirect sex discrimination , unless that measure is justified by objective factors unrelated to any discrimination based on sex .

... if a considerably smaller percentage of women than men is capable of fulfilling the requirement ... imposed by the disputed rule , it is for the Member ORG , as the author of the allegedly discriminatory rule , to show that the said rule reflects a legitimate aim of its social policy , that that aim is unrelated to any discrimination based on sex , and that it could reasonably consider that the means chosen were suitable for attaining that aim . ”

In its judgment of DATE in PERSON v. PERSON am ORG ) and PERSON v. ORG ) , the ORG noted at points DATE and CARDINAL :

“ ... it must be borne in mind that LAW and Article CARDINAL(CARDINAL ) and ( CARDINAL ) ORG set out the principle that men and women should receive equal pay for equal work . That principle precludes not only the application of provisions leading to direct sex discrimination , but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination ...

It is common ground that the provisions of the BeamtVG at issue do not entail discrimination directly based on sex . It is therefore necessary to ascertain whether they can amount to indirect discrimination ...

To establish whether there is indirect discrimination , it is necessary to ascertain whether the provisions at issue have a more unfavourable impact on women than on men ...

Therefore it is necessary to determine whether the statistics available indicate that a considerably higher percentage of women than men is affected by the provisions of the BeamtVG entailing a reduction in the pensions of civil servants who have worked part - time for at least a part of their career . Such a situation would be evidence of apparent discrimination on grounds of sex unless the provisions at issue were justified by objective factors unrelated to any discrimination based on sex . ”

In PERSON v. ORG , ORG ... and Secretary of ORG for ORG and ORG ( judgment of CARDINAL DATE , ORG ) , it stated ( point CARDINAL ) :

“ ... it must be held that a woman may rely on statistics to show that a clause in ORG legislation is contrary to Article CARDINAL ) ORG because it discriminates against female workers . ... ”

Lastly , in Commission of the European Communities v. Republic of GPE ( judgment of DATE , Case C-CARDINAL/CARDINAL ) , the LOC observed ( points CARDINAL and CARDINAL ) :

“ According to settled case - law , the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which , by applying other distinguishing criteria , lead in fact to the same result ( see , in particular , Case CARDINAL/CARDINAL NORP [ DATE ] ECR CARDINAL , paragraph CARDINAL ; ORG v. GPE , cited above , paragraph CARDINAL ; and Case C-CARDINAL/CARDINAL Bidar [ DATE ] ECR [ I-CARDINAL ] , paragraph CARDINAL ) .

... the legislation in question places holders of secondary education diplomas awarded in a Member ORG other than GPE at a disadvantage , since they can not gain access to NORP higher education under the same conditions as holders of the equivalent NORP diploma .

Thus , although paragraph ... applies without distinction to all students , it is liable to have a greater effect on nationals of other Member GPE than on NORP nationals , and therefore the difference in treatment introduced by that provision results in indirect discrimination .

Consequently , the differential treatment in question could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and were proportionate to the legitimate aim of the national provisions ( Case C-CARDINAL/CARDINAL PERSON and PERSON [ DATE ] LOC , paragraph CARDINAL , and ORG , cited above , paragraph CARDINAL ) . ”

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 . ”

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

“ ... 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 .

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

In point 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 . ”

DATE 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 Convention 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 , paragraph CARDINAL ( c ) , 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 Convention , [ 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 .

In its ORG . 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 marginalization 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 . ”

Articles DATE and CARDINAL of this Convention provide :

“ CARDINAL . DATE States Parties recognize 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 ;

( b ) Encourage the development of different forms of secondary education , including general and vocational education , make them available and accessible to every child , and take appropriate measures such as the introduction of free education and offering financial assistance in case of need ;

( c ) Make higher education accessible to all on the basis of capacity by every appropriate means ;

( d ) Make educational and vocational information and guidance available and accessible to all children ;

( e ) Take measures to encourage regular attendance at schools and the reduction of drop - out rates .

DATE States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child ’s human dignity and in conformity with the present Convention .

DATE States Parties shall promote and encourage international cooperation in matters relating to education , in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods . In this regard , particular account shall be taken of the needs of developing countries . ”

“ 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 . ”

Articles CARDINAL to CARDINAL of ORG in Education of DATE provide :

“ 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 .

“ When permitted in a ORG , the following situations shall not be deemed to constitute discrimination , within the meaning of LAW :

( a ) The establishment or maintenance of separate educational systems or institutions for pupils of the CARDINAL sexes , if these systems or institutions offer equivalent access to education , provide a teaching staff with qualifications of the same standard as well as school LOC and equipment of the same quality , and afford the opportunity to take the same or equivalent courses of study ;

( b ) The establishment or maintenance , for religious or linguistic reasons , of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil ’s parents or legal guardians , if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities , in particular for education of the same level ;

( c ) The establishment or maintenance of private educational institutions , if the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities , if the institutions are conducted in accordance with that object , and if the education provided conforms with such standards as may be laid down or approved by the competent authorities , in particular for education of the same level . ”

“ 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 ;

The Declaration on Race and Racial Prejudice adopted by ORG on DATE proclaims as follows :

“ CARDINAL . All human beings belong to a single species and are descended from a common stock . They are born equal in dignity and rights and all form an integral part of humanity .

All individuals and groups have the right to be different , to consider themselves as different and to be regarded as such . However , the diversity of life styles and the right to be different may not , in any circumstances , serve as a pretext for racial prejudice ; they may not justify either in law or in fact any discriminatory practice whatsoever , nor provide a ground for the policy of apartheid , which is the extreme form of racism .

NORP Racism includes racist ideologies , prejudiced attitudes , discriminatory behaviour , structural arrangements and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable ; it is reflected in discriminatory provisions in legislation or regulations and discriminatory practices as well as in anti - social beliefs and acts ; it hinders the development of its victims , perverts those who practise it , divides nations internally , impedes international cooperation and gives rise to political tensions between peoples ; it is contrary to the fundamental principles of international law and , consequently , seriously disturbs international peace and security .

Racial prejudice , historically linked with inequalities in power , reinforced by economic and social differences between individuals and groups , and still seeking DATE to justify such inequalities , is totally without justification . ”

“ Any distinction , exclusion , restriction or preference based on race , colour , ethnic or national origin or religious intolerance motivated by racist considerations , which destroys or compromises the sovereign equality of GPE and the right of peoples to self - determination , or which limits in an arbitrary or discriminatory manner the right of every human being and group to full development is incompatible with the requirements of an international order which is just and guarantees respect for human rights ; the right to full development implies equal access to the means of personal and collective advancement and fulfilment in a climate of respect for the values of civilizations and cultures , both national and world - wide . ”

“ CARDINAL . Culture , as a product of all human beings and a common heritage of mankind , and education in its broadest sense , offer men and women increasingly effective means of adaptation , enabling them not only to affirm that they are born equal in dignity and rights , but also to recognize that they should respect the right of all groups to their own cultural identity and the development of their distinctive cultural life within the national and international contexts , it being understood that it rests with each group to decide in complete freedom on the maintenance , and , if appropriate , the adaptation or enrichment of the values which it regards as essential to its identity .

States , in accordance with their constitutional principles and procedures , as well as all other competent authorities and the entire teaching profession , have a responsibility to see that the educational resources of all countries are used to combat racism , more especially by ensuring that curricula and textbooks include scientific and ethical considerations concerning human unity and diversity and that no invidious distinctions are made with regard to any people ; by training teachers to achieve these ends ; by making the resources of the educational system available to all groups of the population without racial restriction or discrimination ; and by taking appropriate steps to remedy the handicaps from which certain racial or ethnic groups suffer with regard to their level of education and standard of living and in particular to prevent such handicaps from being passed on to children .

“ CARDINAL . The ORG has prime responsibility for ensuring human rights and fundamental freedoms on an entirely equal footing in dignity and rights for all individuals and all groups .

NORP So far as its competence extends and in accordance with its constitutional principles and procedures , the ORG should take all appropriate steps , inter alia by legislation , particularly in the spheres of education , culture and communication , to prevent , prohibit and eradicate racism racist propaganda , racial segregation and apartheid and to encourage the dissemination of knowledge and the findings of appropriate research in natural and social sciences on the causes and prevention of racial prejudice and racist attitudes with due regard to the principles embodied in LAW and in LAW .

NORP Since laws proscribing racial discrimination are not in themselves sufficient , it is also incumbent on GPE to supplement them by administrative machinery for the systematic investigation of instances of racial discrimination , by a comprehensive framework of legal remedies against acts of racial discrimination , by broadly based education and research programmes designed to combat racial prejudice and racial discrimination and by programmes of positive political , social , educational and cultural measures calculated to promote genuine mutual respect among groups . Where circumstances warrant , special programmes should be undertaken to promote the advancement of disadvantaged groups and , in the case of nationals , to ensure their effective participation in the decision - making processes of the community . ”

“ CARDINAL . The principle of the equality in dignity and rights of all human beings and all peoples , irrespective of race , colour and origin , is a generally accepted and recognized principle of international law . Consequently any form of racial discrimination practised by a ORG constitutes a violation of international law giving rise to its international responsibility .

Special measures must be taken to ensure equality in dignity and rights for individuals and groups wherever necessary , while ensuring that they are not such as to appear racially discriminatory . In this respect , particular attention should be paid to racial or ethnic groups which are socially or economically disadvantaged , so as to afford them , on a completely equal footing and without discrimination or restriction , the protection of the laws and regulations and the advantages of the social measures in force , in particular in regard to housing , employment and health ; to respect the authenticity of their culture and values ; and to facilitate their social and occupational advancement , especially through education .

The information on education in GPE available on the website of ORG includes the following .

“ In GPE , there are no official or non - official data on racism and discrimination in education available .

The most serious problem of the NORP education system is still the segregatory placement of children from socially disadvantaged backgrounds ( very often GPE ) in special schools . CARDINAL of NORP children study there . Such tendencies of the NORP education system especially at elementary schools were proved by extensive research carried out by ORG of the Czech Republic . Only a very small percentage of GPE youth enter secondary schools . ”

The Monitoring Centre ’s report entitled “ ORG ” , which was published in DATE and concerned what at the time were CARDINAL member GPE of ORG , noted , inter alia , that although systematic segregation of GPE children no longer existed as educational policy segregation was practised by schools and educational authorities in a number of different , mostly indirect , ways , sometimes as the unintended effect of policies and practices and sometimes as a result of residential segregation . Schools and educational authorities may , for example , segregate pupils on the basis of a perception of “ their different needs ” and/or as a response to behavioural issues and learning difficulties . The latter could also lead to the frequent placement of GPE pupils in special schools for mentally handicapped children , which was still a worrying phenomenon in member GPE of ORG like GPE , GPE and GPE . However , steps were being taken to review testing and placement procedures taking into account the norms and behavioural patterns of the GPE children ’s social and cultural background .

In its decision of DATE in the case of GPE v. Immigration Officer at FAC and another ex parte ORG and others , ORG unanimously held that NORP immigration officers working at FAC had discriminated against GPE wishing to travel from the airport to GPE as they had on racial grounds treated them less favourably than other people travelling to the same destination .

Baroness PERSON of GPE said , inter alia :

“ CARDINAL . ... The underlying concept in both race and sex discrimination laws is that individuals of each sex and all races are entitled to be treated equally . Thus it is just as discriminatory to treat men less favourably than women as it is to treat women less favourably than men ; and it is just as discriminatory to treat whites less favourably than blacks as it is to treat blacks less favourably than whites . The ingredients of unlawful discrimination are ( i ) a difference in treatment CARDINAL person and another person ( real or hypothetical ) from a different sex or racial group ; ( ii ) that the treatment is less favourable to one ; ( iii ) that their relevant circumstances are the same or not materially different ; and ( iv ) that the difference in treatment is on sex or racial grounds . However , because people rarely advertise their prejudices and may not even be aware of them , discrimination has normally to be proved by inference rather than direct evidence . Once treatment less favourable than that of a comparable person ( ingredients ( i ) , ( ii ) and ( iii ) ) is shown , the court will look to the alleged discriminator for an explanation . The explanation must , of course , be unrelated to the race or sex of the complainant . If there is no , or no satisfactory explanation , it is legitimate to infer that the less favourable treatment was on racial grounds ...

NORP If direct discrimination of this sort is shown , that is that . Save for some very limited exceptions , there is no defence of objective justification . The whole point of the law is to require suppliers to treat each person as an individual , not as a member of a group . The individual should not be assumed to hold the characteristics which the supplier associates with the group , whether or not most members of the group do indeed have such characteristics , a process sometimes referred to as stereotyping . ...

The complaint in this case is of direct discrimination against the GPE . Indirect discrimination arises where an employer or supplier treats everyone in the same way , but he applies to them all a requirement or condition which members of CARDINAL sex or racial group are much less likely to be able to meet than members of another : for example , a test of heavy lifting which men would be much more likely to pass than women . This is only unlawful if the requirement is CARDINAL which can not be justified independently of the sex or race of those involved ... But it is the requirement or condition that may be justified , not the discrimination . This sort of justification should not be confused with the possibility that there may be an objective justification for discriminatory treatment which would otherwise fall foul of LAW .

It is worth remembering that good equal opportunities practice may not come naturally . Many will think it contrary to common sense to approach all applicants with an equally open mind , irrespective of the very good reasons there may be to suspect some of them more than others . But that is what is required by a law which tries to ensure that individuals are not disadvantaged by the general characteristics of the group to which they belong . In DATE , when the operation with which we are concerned began , the race relations legislation had only just been extended to cover the activities of the immigration service . It would scarcely be surprising if officers acting under considerable pressure of time found it difficult to conform in all respects to procedures and expectations which employers have been struggling to get right for CARDINAL of a century .

It is against this background that such evidence as there is of what happened on the ground at FAC needs to be assessed . The officers did not make any record of the ethnic origin of the people they interviewed . The respondents can not therefore provide us with figures of how many from each group were interviewed , for how long , and with what result . This , they suggest , makes it clear that the officers were not relying on the Authorisation : if they had been , they would only have had to record their view of the passenger ’s ethnicity . If correct , that would have been enough to justify refusal of leave . But what it also shows is that no formal steps were being taken to gather the information which might have helped ensure that this high - risk operation was not being conducted in a discriminatory manner . It also means that the only information available is that supplied by the claimants , and in particular the ORG which was attempting to monitor the operation . The respondents can cast doubt on the reliability of this , but they can not contradict it or provide more reliable information themselves . ... ”

ORG issued its decision in the case of PERSON v. ORG , CARDINAL US CARDINAL ( DATE ) , in which it established the disparate impact test , after black employees at an electricity generating plant had brought proceedings on the grounds that their ORG practice of requiring them to hold a high school diploma or to pass an aptitude test , even for the least well - paid jobs , was discriminatory . Fewer blacks had managed to obtain the diploma or pass the standardised tests . ORG stated :

“ The [ Civil Rights ] Act [ of DATE ] requires the elimination of artificial , arbitrary , and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race , and , if , as here , an employment practice that operates to exclude ORG can not be shown to be related to job performance , it is prohibited , notwithstanding the employer ’s lack of discriminatory intent . ...

The LAW does not preclude the use of testing or measuring procedures , but it does proscribe giving them controlling force unless ... they are demonstrably a reasonable measure of job performance ...

The LAW proscribes not only overt discrimination but also practices that are fair in form , but discriminatory in operation . The touchstone is business necessity . If an employment practice which operates to exclude ORG can not be shown to be related to job performance , the practice is prohibited .

... ORG has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question . ”