The key facts of the case
In the case of D.H. And Others v The Czech Republic, in 2007, 18 people who are Czech nationals of Roma origin accused the Czech Republic violated Article 14 of the European Convention on Human Rights and Article 2 of Protocol No.1. The key facts of the case are as follow:
- The Roma have historical disadvantages and have national-minority status in the Czech Republic.
- The Czech Republic established several special schools which were intended for all children who had mental deficiencies and were unable to attend “ordinary” school.
- Under the terms of the Schools Act, all children are asked to do a test which is aimed at measuring the child’s intellectual capacity executed in an educational psychology center.
- The decision to place a child in a special school rests on the head teachers based on the results and has to be agreed upon by the child’s legal guardians.
- According to statistics, the special school project caused a Roma child to be 27 times more likely to be placed in a special school than a non-Roma child.
- European Court of Human Rights (ECtHR) holds that there has been a violation of Article 14 taken in conjunction with Article 2 of Protocol No.1 by thirteen votes to four.
Analysing the significance
Before analyzing the judgment of ECtHR, I would like to talk about the reason why I chose the case. It is because the case is a landmark in ECtHR which has a lot of legal and wider societal significance.
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Firstly, the judgment provoked discussion about Toma’s disadvantaged status in Europe, which was a very good chance to promote the human rights protection of the Roma. As we all know, almost all of Roma's people have been living in poor living conditions throughout their history. In addition, the major culture of European does not accept the Roma. As a result, most Roma live in a vacuum. According to New and Merry’s research in 2010, although Roma still suffering from discrimination in many areas since the judgment, some non-Roma people have begun to speak for Roma people, which cannot be imagined before. On the other hand, Smekal and Šipulová argued that the judgment brought an outburst of racism to the Czech. For instance, some people launched a vitriolic attack on the Roma there. However, every progress comes with labor pains. This is, by all means, a step change in protections for the Roma people.
Secondly, the ruling set a precedent for future indirect discrimination cases. In other words, it means ECtHR now recognizes indirect discrimination involved in Article 14. Indirect discrimination is an important principle in the theory of equality. This is because sometimes a neutral measure could lead to an unequal result between different groups of people and it is hard to make a distinction between direct discrimination and indirect discrimination. Although the ECtHR did not provide clear guidance to recognize indirect discrimination, it did define some characteristics of it. For example, intent is not sine qua non of indirect discrimination. The Grand Chamber of ECtHR claimed that it is not necessary to consider intent in the case.
At last, the ECtHR accepted statistics to be adduced as a witness to the indirect discrimination, which is an elevating measure. This is the first time ECtHR has used statistics as an approach to consider social context. As the key facts of the case show, the ECtHR found Roma suffered a disproportionately prejudicial effect from the progress by analyzing statistics. It is elevating because it is hard to recognize indirect discrimination with the eye of an individual victim. In other words, the neutral measure in the treatment would all people to realize the inequality within it. Now by using statistics, people could easily avoid analyzing the measure and find the inequality of result becoming visible.
My view
After doing research, I conclude that I do agree with the judgment that there was a violation of Article 14. The main reason is that the result of a special school for the Roma community was apparent. However, the case is highly controversial. In this section, I will analyze some reasons why some people disagree with the ruling and abstract the element of indirect discrimination from the case.
Firstly, Judge Borrego who counters the ruling holds that the consent of the parents should be taken into consideration. There is indeed a possibility that the harmful result could be avoided if
Roma's parents did not accept those decisions to place their children in special school. However, it was an unfortunate necessity because of their historical disadvantages. As ECtHR identified, It was a hard choice for Roma parents, letting their child risk isolation and ostracism or going to special schools where the majority of students were Roma. In other words, the consent was on account of their historical disadvantages. Article 14 presupposes that some groups of people need to be protected because of their disadvantages. Therefore, the conclusion that there was no discrimination because their parents agreed is a non sequitur.
Secondly, some judges claimed that the Czech Republic instead of being passive to the issue of Roma education like most other countries which seems to be lower risk to them, took the high road in dealing with the Roma’s education problem. They thought it might lead to a worse situation for Roma that the authorities would not be willing to adopt positive action to promote Roma children’s education in the future. The argument is not acceptable because the authorities have a positive obligation to promote the protection of human rights. In the protection of human rights, neither ‘lower-risk’ passive measures nor ‘harmful’ positive measures are agreeable. It is not appropriate to be pressured into a wrong treatment because afraid of another.
Lastly, I would like to do a brief analysis of the element of indirect discrimination based on the case.
- A group of people involved in the ction. As mentioned above, indirect discrimination can only be identified between groups of people. In the case, instead of considering what happened to the 18 applicants, the court considered the effects of special schools on the whole Roma people.
- They have historical disadvantages It is clear that if every group that is involved in the action does not show manifest disadvantages compared with other groups, the action is just a fair competition. In this case, the historical disadvantages of Rome came up in the beginning.
- The action is neutral. This is the central difference between indirect discrimination and direct discrimination. In this case, the selection progress was the same for both Roma children and Non-Roma children
- The result of action is disproportionately harmful to them. The prohibition of indirect discrimination is going to achieve equality of results. In the case, the judgment found that the special schools had a disproportionately prejudicial effect.
In most cases, If all those four elements are involved Because of word limitations, the explanation could not be expanded enough. I will complete it in my future research.
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