Roma Rights 2013: National Roma Integration Strategies: What Next?
6th, January, 2014
Horváth and Kiss v Hungary - The Misdiagnosis Case
Since the 1970s, scientific research has shown that the practice of misdiagnosis and consequent transfer of Romani children into special schools has been used as a tool to segregate Romani children from non-Romani students and to keep them away from mainstream schools. This practice was a response to the quickly growing number of Romani children of primary school age.2 The transfer was legitimised by psychological and educational arguments. Moreover the concept of ‘familial disability’ was developed, arguing that socio-economic deprivation of Roma creates special needs falling within the definition of mental disability and serving as a ground for transfer to special schools. In addition, in Hungary until 20043 IQ scores on mild mental disability did not comply with WHO standards. Roma children with IQ scores between 70 and 86 were regularly placed into special schools – even though since the late 1970s Hungary has adhered to the World Health Organisation’s standards, which set the upper limit of mild mental retardation at an IQ of 70.4
In line with this practice, the two Romani applicants in the Horvath and Kiss case were victims of misdiagnosis and subsequently placed in special school despite their sound mental ability. As a result of the misdiagnosis, they could not access mainstream education. Instead, they were educated in a segregated remedial school created for children with mental disabilities. Their education followed a lower curriculum than in mainstream schools, preventing them form accessing secondary schools where they could have acquired a baccalaureate. This subsequently limited their future opportunities in higher education.
The applicants exhausted domestic remedies without securing redress for the systematic nature of the problem. In its judgment, the Supreme Court found that the Hungarian State failed to create an appropriate professional protocol which considers the special situation of Romani children and alleviates the systemic errors of the diagnostic system; as a result the applicants’ human rights may have been violated by the State. However, the Supreme Court found that it had no competence to decide on the merits of the case with regard to the violation of substantive rights. It pointed to the European Court of Human Rights (ECtHR) as a forum that has the competence to judge this matter and provide effective remedy to the applicants with regard to the potential violation of their fundamental rights due to the systematic errors of the existing diagnostic system. This suggestion by a domestic court that the applicants seek justice in the ECtHR suggests serious failings in the Hungarian legal order to comply with the principle of subsidiarity: human rights issues should be resolved at the domestic level if possible, with recourse to the European level being exceptional.
The application to the ECtHR and arguments of the applicants
In 2011, the applicants submitted an application to the ECtHR, asking the Court to establish that their misdiagnoses and consequent education in the remedial school amounted to primarily direct, or alternatively indirect, discrimination under Article 2 of Protocol No.1. (right to education) read in conjunction with Article 14 (non-discrimination) of the European Convention on Human Rights.
The applicants claimed that Roma were uniquely burdened by the failures of the testing and placement system, that Roma children were put at a particular disadvantage because of the culturally-biased and knowledge-based placement tests, and that their socially and culturally disadvantaged background resulting from their ethnicity was not taken into account when assessing the results. In addition to the inadequate tests used and the non-compliance with WHO standards, the applicants claimed that the whole testing process was flawed as the tests were not sufficiently individualised (§ 91-93).5
Argument of the Government
In its argument the Government denied that the applicants had been treated less favourably than non-Roma in a comparable, socially and economically deprived situation. The Government also asserted that inasmuch as the applicants had been treated differently, the different treatment had an objective and reasonable justification (§ 94). The Government argued that the tests were not biased and applicants were tested with a complex method, not with a single test or process (§ 95). Relying on expert opinions, the Government claimed that the socio-cultural background of the children had been decisive for the mental development of the child. The Government claimed that as a consequence, the disproportionate representation of Roma children in special education was due to their disproportionate representation among those living in social and economic deprivation and therefore they were deprived of “the beneficial effects of modernisation on the mental development of the children” (§ 96). The Government further argued that the testing of the applicants’ abilities had been sufficiently individualised (§ 97) and that procedural safeguards had been in place under Hungarian law. The Government did not dispute the fact that in the applicants’ case these procedural requirements had not been respected, as this had already been established by domestic courts (§ 98). The Government also emphasised that the testing was not carried out for medical purposes but to assess learning abilities, and so the testing did not constitute a medical diagnosis of mild mental retardation as defined by the World Health Organisation (WHO) (§ 100).
Based on ECtHR case law, treating persons differently in a comparable situation without an objective and reasonable justification amounts to discrimination; however article 14 does not prohibit States from treating groups differently in order to correct factual inequalities, and in fact under certain circumstances the failure to do so may itself amount to discrimination and a violation of Article 14. According to the Court the practice of misdiagnosis resulting in segregation amounted to indirect discrimination in relation to the applicants.
In its assessment the Court reinforced its position that discrimination on account of a person’s ethnic origin is a form of racial discrimination that requires from the authorities special vigilance and a vigorous reaction. It also noted that there is no objective justification for race discrimination. It held that “no difference in treatment which is based on exclusively or to a decisive extent on a person’s ethnicity or origin is capable of being objectively justified in a contemporary democratic society built on the principle of pluralism and respect for different cultures” (§ 101).
The Court referred to the vulnerable position of Roma, who have historically suffered from exclusion, and therefore require special consideration to be given to their different need (§ 102). When it comes to Article 2 of Protocol No.1. (the right to education), States are not only required to refrain from interference but required to implement positive measures. In particular, in line with judgment delivered in the case of Orsus and Others v Croatia,6 the ECtHR emphasised the need for positive measures in the context of the right to education, when a certain group, such as Roma, has historically suffered from discrimination in the field of education (§ 103-104). The Court also emphasised the long history across Europe of the inappropriate placement of Roma children into special schools (§ 115).
Applying these principles to the case, the Court found that the misplacement of Romani children constitutes an indirect discrimination and therefore a violation of Article 2 of Protocol No.1. in conjunction with Article 14. Since the applicants did not claim damages as they had already received damages in the domestic proceedings the Court ordered the Hungarian State to pay 4,500 Euros jointly for the applicants’ costs.
This is not the first time that the ECtHR has found that the misdiagnosis of Romani children and their subsequent segregation into special schools amount to discrimination. Already, in 2007, the Grand Chamber of the Court in the D.H. and Others v the Czech Republic case established that such a practice amounts to indirect discrimination. Six years later that judgment is still waiting for adequate implementation.
In Horvath and Kiss the Court clarified and developed its position in relation to misdiagnosis. Moreover, it went further concerning the positive obligations on States to remedy past and current discrimination. Regrettably, however, it did not depart from its main approach elaborated in D.H.; in particular, it refused to find direct discrimination. Alarmingly, on closer examination, it appears to require proof of intent for finding direct discrimination. Thus, the Court found indirect discrimination despite the arguments presented by the applicants that, unlike in D.H., in this case there was no general policy or measure which was apparently neutral: since the 1970s it was well documented and widely-known among experts in Hungary that the tests were not neutral but biased against Roma. The applicants also relied on the EU Racial Equality Directive (Council Directive 2000/43/EC of 29 June 2000, ‘RED’), claiming that they suffered direct discrimination as that term is defined in EU legislation (and, by analogy, as it should be defined under Article 14). The applicants argued that, unlike under the Court’s jurisprudence, under RED and Hungarian law, there can be no justification for direct ethnicity-based discrimination in public education, except for the purposes of positive action. In addition, they invoked the case law of the Court of Justice of the European Union (CJEU) which has condemned as direct discrimination situations in which a formally neutral criterion in fact affects one group only.7 The Court summarily refused this argument. It did not accept that if a practice only affected Romani children – as did misdiagnosis – then it ought to have constituted direct discrimination, because such practice could not be ethnically neutral (§ 110).
It is equally unfortunate that the Court sidestepped the alleged violation resulting from structural problems with biased testing by declaring the complaint about this point – which was inherently linked to the rest of the complaint – inadmissible for failure to exhaust domestic remedies (§ 87). Similarly to D.H., it left it within the State’s margin of appreciation to decide whether to maintain a special education system and whether to preserve a system of testing children.
The Court nonetheless reaffirmed several important principles, while indicating its willingness to find discrimination in relation to the segregated education of disabled children as well:
- First of all, although the Court does not define or establish segregation per se, it clearly stated that the arrangements of special schools in Hungary constituted a segregated setting, where the more basic curriculum was followed and “where [the children] were isolated from pupils from the wider population” (§ 127).
- Secondly, when analysing the guarantees stemming from the positive obligations of the States the judgment goes further than in Orsus and Others v Croatia, and explicitly defines the substance of the positive obligation that the respondent State must fulfil. While in Orsus the Court called for putting in place “safeguards”,8 in Horvath and Kiss the Court explicitly imposed an obligation on states to introduce positive measures to combat discrimination in public education: States have “specific positive obligations to avoid the perpetuation of past discrimination or discriminative practices (…)” (§ 116) and must “undo a history of racial segregation in special schools” (§ 127).
- Thirdly, the Court elaborated on the State’s narrower margin of appreciation and stricter scrutiny when considering fundamental rights of vulnerable groups and took note of another vulnerable and historically discriminated group: the ‘mentally disabled’. By reiterating its findings in the case of Alajos Kiss v Hungary9 (§ 42 and 44), the Court suggested that, as it has done with Roma, it is ready to introduce specific positive obligations in cases of other vulnerable groups such as intellectually disabled children.
The judgment demonstrates that the ECtHR is willing to take a more robust approach to the segregation of Roma children. This represents an evolution in the case law since D.H., although even that earlier judgment is still awaiting implementation six years later. Clearly the time has come for cases such as this to be resolved at the domestic level. It is a welcome development that national judges now have a clear indication from the ECtHR as to what standards of scrutiny are required. It is unfortunate that the ECtHR did not seize the opportunity to expand its notion of direct discrimination. The existence of different standards under EU law and the ECHR will however become apparent over time and likely lead to a more flexible understanding of this concept.
- Judit Gellér, Lawyer. She holds a BA degree in Public Administration from the Corvinus University of Budapest and a Master of Law from the Eotvos Lorand University Budapest. She studied international law at the Law Faculty of University of Leuven, Belgium and completed a traineeship at the European Court of Human Rights. She joined the ERRC in November 2007.
- G. Havas, I. Kemény, and I. Liskó, Cigány gyerekek az általános iskolában, Oktatáskutató Intézet, Új Mandátum, (Budapest, 2002).
- In 2004, Bálint Magyar, Minister of Education wrote to Expert Panels to urge them to stop transferring children with scores above IQ70 to special schools.
- According to DSM-IV classification, IQ 71-84 is classified under the code V62.89 as Borderline intellectual functioning, whereas under code 317 is Mild Mental retardation, going from 50-55 to approximately 70. See Diagnostic and statistical manual of mental disorders: DSM-IV (Washington, DC: American Psychiatric Association. 2000).
- These failures had been established by the domestic courts.
- European Court of Human Rights, Orsus and Others v Croatia, no. 15766/03.
- See: Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, Case C-267/06, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0267:EN:HTML. The case concerned a German law that permitted life partnership to same sex couples, but same sex couples cannot marry. Mr Maruko survived his life partner who had been making payments into an occupational pension fund. He applied for a survivor’s pension from the fund but was refused. In a preliminary referral procedure the ECJ ruled that the Framework Employment Directive applied to his case. It also ruled that in relation to a survivor’s pension paid out of an occupational pension fund, life partnership between persons of the same sex was a comparable situation to that of spouses.
- European Court of Human Rights, Orsus and Others v Croatia, no. 15766/03 § 183.
- European Court of Human Rights, Alajos Kiss v Hungary, no. 38832/06, § 42, 44.