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D.H. and Others v the Czech Republic

26 November 2013

Forum: European Court of Human Rights
ERRC role: Representative
Status: Implementation 

The case was brought by 18 Roma students from the Ostrava region in the Czech Republic. During 1996 and 1999 all applicants had been assigned to special schools for children with learning difficulties where they received inferior education based on a diluted curriculum. 

In 2000 the applicants complained to the European Court of Human Rights arguing that their treatment amounted discrimination in violation of Article 14 in conjunction with Article 2 of Protocol 1 of the European Convention on Human Rights as their right to education had been denied. Applicant submissions to the European Court of Human Rights included extensive research indicating that Roma children were systematically assigned to segregated schools based on their racial or ethnic identity rather than intellectual capacities. 

In a decision in February 2006, the chamber of the Court stated that although the applicants had raised serious arguments, they did not amount to a violation of the Convention. Pursuant to an appeal filed by the applicants, on the Grand Chamber in a landmark decision ruled in favour of the applicants and found that the applicants had suffered discrimination when denied their right to education. 

The judgment is path breaking in a number of respects:

  • Patterns of Discrimination – For the first time, the European Court of Human Rights has found a violation of Article 14 of the Convention in relation to a pattern of racial discrimination in a particular sphere of public life, in this case, public primary schools. As such, the Court has underscored that the Convention addresses not only specific acts of discrimination, but also systemic practices that deny the enjoyment of rights to racial or ethnic groups. 
  • Segregation is Discrimination - The Court clarified that racial segregation amounts to discrimination in breach of Article 14. 
  • Equal Access to Education for Roma is a Persistent Problem Throughout Europe - The Court went out of its way to note that the Czech Republic is not alone - discriminatory barriers to education for Roma children are present in a number of European countries. 
  • Unified Anti-Discrimination Principles for Europe - This decision brings the European Court of Human Right’s Article 14 jurisprudence in line with principles of antidiscrimination law that prevail within the European Union. 

The Court further established, clarified or re-affirmed the following principles: 

  • Indirect Discrimination - A difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a racial or ethnic group. Indeed, for the first time the Court clarified that such a situation may amount to “indirect discrimination,” in breach of the Convention. 
  • Intent Not Required – A difference in treatment without objective and reasonable justification may violate Article 14 even absent discriminatory intent. Thus, where it has been shown that legislation produces an unjustified discriminatory effect, it is not necessary to prove any discriminatory intent on the part of the relevant authorities. 
  • Facially Neutral Law - Even where the wording of particular statutory provisions is neutral, their application in a racially disproportionate manner without justification which places members of a particular racial or ethnic group at a significant disadvantage may amount to discrimination. 
  • Statistics - When it comes to assessing the impact of a measure or practice on an individual or group, the use of statistics may be relevant. In particular, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute prima facie evidence of indirect discrimination. The Court confirmed, however, that statistics are not a prerequisite for a finding of indirect discrimination. 
  • Shifting Burden of Proof – In order to guarantee the effective protection of rights of non-discrimination, less strict evidential rules should apply in cases of alleged indirect discrimination. Where an applicant alleging indirect discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which show that the difference in treatment is not discriminatory. 
  • No Waiver of Right to Non-Discrimination - In view of the fundamental importance of the prohibition of racial discrimination, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest. 
  • The Special Situation of Roma - As a result of their history, the Roma have become a specific type of disadvantaged and vulnerable minority who require special protection.

Case Documents 

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