Case of Horvath and Kiss v Hungary , ECHR Application no. 11146/11
The European Court of Human Rights (ECHR) has found that Hungary’s procedures for placing children in schools for children with mental disabilities resulted in discrimination against the Roma, curtailing their enjoyment of the right to education. This is the most recent in a series of ECHR cases addressing the segregation of Roma children within European state education systems.
The two applicants are young Roma men who, as children, had been diagnosed as having a mental disability and placed in a “remedial school”. Roma children have been overrepresented in remedial schools throughout Hungary, largely due to the State’s assessment and definition of mental disability which failed to take into account their different cultural and social-economic backgrounds, and the legal definition which before 2003 went beyond mental disability and included educational challenge, dyslexia and behavioural problems. At the remedial school, the applicants were taught a simpler curriculum which curtailed their access to professional qualifications and future work opportunities.
The applicants submitted an application to the ECHR against Hungary in February 2011, alleging that their placement into a special school constituted ethnic discrimination affecting enjoyment of their right to education, in breach of Article 2 of Protocol No. 1 (the right to education), read in conjunction with Article 14 of the Convention (non-discrimination).
The Second Chamber followed the reasoning of ECHR Grand Chamber decisions in similar cases against the Czech Republic and Croatia, also relating to discrimination against Roma children within State education systems (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, ECHR 2007‑IV, Oršuš and Others v. Croatia [GC], no. 15766/03, ECHR 2010 Application No. 29518/10).
The ECHR reiterated that discrimination under Article 14 of the Convention means:
“treating differently, without an objective and reasonable justification, persons in relevantly similar situations”.
A policy, law or practice, although neutral on its face, can still result in indirect discrimination if its application in practice disproportionally affects members of a particular group. Discriminatory intent is not required in order to prove indirect discrimination. The applicant must prove the discriminatory effect of a practice, which will give rise to a presumption of discrimination that the State must then rebut. The State can do this by showing that the difference in treatment is somehow justified. When the difference in treatment is applied on the basis of race or ethnicity, what constitutes an “objective and reasonable justification” is strictly interpreted. In the current case, Mr Horváth and Mr Kiss needed to demonstrate that their placement in a remedial school led them to be treated less favourably than non-Roma children in a comparable situation.
The ECHR found that Roma appear to have been overrepresented in the past in remedial schools due to the systematic misdiagnosis of mental disability, which had a disproportionately negative effect on Roma children. The ECHR noted that the Hungarian Government had taken steps to avoid the misdiagnosis and placement of children within the education system, but that these steps had been inadequate, given the continuing high numbers of misdiagnosed Roma children.
Due to historical discrimination against the Roma, and recognised discrimination in placing Roma children within the State education system, Hungary had a positive obligation to take legal and practical steps to ensure that this discrimination was not continued. The ECHR found that there were insufficient safeguards in place to ensure Roma children were not misplaced within the public education system. The applicants’ special needs as members of a disadvantaged ethnic group were not taken into account, resulting in them receiving an education which may have hampered their personal development. As Hungary could provide no reasonable justification for this difference in treatment of Roma children, the ECHR held that the applicants had suffered discrimination in terms of their right to education, and that Hungary was in breach of its obligations under Article 14 of the Convention, and Article 2 of Protocol 1.
The Roma/Gypsy minority have been recognised as a particularly vulnerable group in Europe. From a very distinct cultural and linguistic background to other ethnic groups, they have suffered from marginalisation and stigmatising policies that have reinforced their vulnerable position. Education has been recognised as one key aspect of such policies by academics and European expert groups, including the Council of Europe Committee of Ministers [R(2000)4], the Advisory Committee on the Framework Convention for the Protection of National Minorities, [CM(2000)165], the Commissioner for Human Rights [CommDH(2006)11] and the European Commission against Racism and Intolerance. These expert groups have repeatedly affirmed the importance of ensuring the sociological background and language of Roma children are celebrated, while still ensuring they receive access to a high level of education.
The Court’s decision also comes with an emphatic reminder of the particular abhorrence of racial discrimination, the difficulties states face in attempting to justify it and the absolute necessity for states to use all available means to vigorously combat it. The Court stated:
Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment. The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures.
The full decision of the European Court of Human Rights can be accessed here.
Naomi Kinsella is an Australian lawyer currently working with the American Bar Association Rule of Law Initiative.