DH and Others v the Czech Republic  ECHR 57325/00 (Grand Chamber) (13 November 2007)
The Grand Chamber of the European Court of Human Rights has held that the education policy in the Czech Republic, which resulted in the majority of Roma children being placed in special schools designed for the mentally handicapped, violated art 14 of the European Convention on Human Rights. Article 14 of the Convention enshrines the right to non-discrimination and the equal enjoyment of human rights. The Court held that the education policy indirectly discriminated against the applicants on the basis of their race in relation to their right to education.
Between 1996 and 1999 the 16 applicants, of Roma origin, were placed in special schools for children with learning disabilities. The applicants were referred to special schools after undergoing intellectual capacity tests, which deemed them unsuited to the mainstream schooling system. Parental consent to the transfer was obtained by signing a pre-completed form. The practical effect of attending a special school was to preclude the applicants from attending secondary schools other than vocational schools and to decrease their chances of finding employment.
The applicants contended that their placement in special schools was not based on any mental impairment, but on grounds of real or perceived language and cultural differences between Roma and other people. They relied upon statistics which indicated that the percentage of Roma children in special schools was disproportionately high.
The Court reiterated that discrimination means ‘treating differently, without an objective and reasonable justification, persons in relevantly similar situations.’ Where legislation has this effect there is no need to prove an intention to discriminate. It also emphasized that discrimination can be direct (expressly discriminatory) or indirect (not expressly discriminatory however the practical effect is disproportionately prejudicial to a particular group). Racial discrimination was considered to be of particular concern requiring ‘special vigilance and a vigorous reaction’.
Because of the difficulty an applicant may face when trying to show differential treatment, particularly in cases of indirect discrimination, the Court stated that in such cases less strict evidentiary rules should apply. Further, the court may consider reliable and significant statistical evidence in order to establish a rebuttable presumption of discrimination which the State must then disprove or justify on objective grounds.
The Court also took into consideration the vulnerable position of the Roma people which it stated required special consideration be given to their needs and their different lifestyle in regulatory frameworks and in cases before the courts.
‘Objective and Reasonable Justifications’
The Court rejected theCzechRepublic’s submission that the placement of Roma children in special schools was based on objective grounds. The intellectual capacity tests which provided the basis for the placement in special schools were highly controversial and potentially biased. The results of the tests were not assessed in light of the special characteristics and learning needs of the Roma children. For this reason the tests could not be used to justify the differential treatment in breach of art 14.
While the Court accepted that the establishment of special schools did not have a discriminatory intent, it held, however, that there was a lack of procedural safeguards in place to ensure the Government took into account the special needs of members of disadvantaged groups when implementing its education policy. In the absence of effective procedural safeguards, the special schooling system was outside the legitimate margin of appreciation allowed to States when administering public services and institutions. Because the education received in special schools exacerbated rather than alleviated the difficulties faced by the Roma children, the differential treatment was not objectively and reasonably justified and the means used were not proportionate to the aim pursued.
The Court reaffirmed that, if a waiver of a right guaranteed by the Convention was permitted, the waiver must be unequivocal and based on fully informed consent. Because the applicants’ parents were also members of the disadvantaged, often poorly educated Roma group, the Court was not satisfied that they were capable of giving the required consent. This was exacerbated because the consent form was pre-completed and contained no information about the alternative education streams and the differences between those streams and the special schools, thus preventing the parents from assessing their options and the consequences of their decision. Thus, the criterion for a waiver of the right to be free from discrimination was not established.
Implications for the Victorian Charter
This decision may be relevant to the interpretation of s 8(2) of the Victorian Charter which provides that everyone ‘has the right to enjoy his or her human rights without discrimination’. This prohibits differential treatment in matters falling within the ambit of a human right unless such differential treatment is justified on reasonable and objective grounds: see also R (on the application of Clift) v Secretary of State for the Home Department  UKHL 54 (13 December 2006).
While there is already a large body of law surrounding the meaning of discrimination in Victoria due to the existence and application of the Equal Opportunity Act 1995, Victorian Courts may rely on this decision as a basis for allowing statistical evidence to prove the existence of indirect discrimination and to require an administrative body to rebut a presumption of discrimination established by an applicant. It may also encourage Courts to take notice of particularly vulnerable groups in the community and require legislators and policy makers to consider the special needs of these groups in order to avoid and/or remedy indirect or systemic discrimination.
Jane Tipping and Jessica Bowman, Human Rights Law Group, Mallesons Stephen Jaques