Tuesday, 16 March 2010

Roma Education Grand Chamber Judgment in Orsus

Today, the Grand Chamber of the Court delivered its judgment in the case of Oršuš and Others v. Croatia. It found that the separate education of many Roma children in several Croatian towns (in one school most Roma were put in separate classes, in another most were put in mixed classes), for the reason of language deficiencies, was not accompanied by sufficient safeguards and thus violated the prohibition of discrimination(Art.14 ECHR) taken together with the right to education (Art. 2 of Protocol 1).

The voting was extremely close, with nine out of seventeen judges voting for a violation on this point, thereby reversing an earlier unanimous chamber judgment of the Court in the same case. For more on the facts of the case and the reasoning of the original section of the Court dealing with the case, see my earlier post here. For my comments on another judgment, Sampanis v. Greece, in which the Court did find a violation and some remarks on the famous D.H. v. Czech Republic case, in which the Grand Chamber also reversed the judgment of an ordinary chamber, click here. Although most of these judgments end with the conclusion of a violation, the Court still seems very divided on the issue of the application and consequences of the notion of indirect discrimination (although the definition is agreed upon). In this case the dissenting judges emphasized among others the margin of appreciation for the state, the responsibilities of the parents, and the interests of the non-Roma children (whereas the majority points to the unwillingess of the non-Roma parents to have Roma pupils in their own childrens' classes, which might point to cultural patterns of discrimination). In general the dissenters indicated that the majority seemed more keen to rule on the general issue of the vulnerable position of Roma than on the specific facts of the case. The dissenters end with a barely-hidden warning on what the effect of such a judgment may be:

We would also like to stress that in a situation like the present one in which the Court is overruling a well-reasoned judgment by a Constitutional Court, as well as a unanimous judgment of one of its Chambers, by adopting a Grand Chamber judgment by a nine to eight vote, it should have presented more convincing arguments to justify its decision. In addition, it would have been useful if the Court had been willing to offer more practical guidance on how to develop and apply the notion of indirect discrimination. As it stands, without any clear indications on the matter, it could appear that the majority simply used its own discretion to replace a decision of the highest national court with its own. In so doing, the Court runs the risk of being told that it took upon itself the task of the national courts. Particularly so in a situation where the Constitutional Court's reasoning was based on the principles of the Convention and where its indications to the domestic authorities were clear. Thus, the present example well illustrates that when it comes to cases where the Court declares that a certain margin of appreciation is to be left to the States, it should be particularly careful not to overstep its role, especially when a large number of judges in the Court have expressed their support for the Constitutional Court's approach.

Be that as it may, it will certainly not be easy for the respondent State or any other State party to the Convention faced with schooling problems in relation to minority groups to follow the present judgment.
It is indeed difficult to foresee how many situations of partially separate schooling of minority groups for reasons of language (which is done in several European countries) should now be assessed under the Convention. Specifically, it is not yet clear how heavily the Court would weigh the special history of discrimination against the Roma as compared to other minorities in Europe (e.g. recent migrants or refugees). To be continued...

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