X and Y v Albania (2022)
15 June 2023
The facts of this case are identical to those in X and Others v Albania. It is a case of school segregation. This complaint is being considered separately because it was made later than the complaint in X and Others. We are representing a grandmother who is acting for her grandchildren, Romani pupils attending a segregated school.
The Court’s Judgment
After arguments were exchanged between the Parties, on 31 May 2022, the European Court issued a judgment largely agreeing with ERRC. They held that Albania had violated Article 1 of Protocol no. 12 to the Convention and that the applicants are owed compensation.
The Court agreed with ERRC that, in this case, the standard rule that would normally require applicants to go their domestic courts did not apply. The Albanian Equality Commissioner has similar power under domestic law to a court in that it can issue binding decisions like its 2015 conclusion that discrimination was occurring at Naim Frasheri School and its order for action.
The Court affirmed that “discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations,” although in some circumstances different treatment is necessary to correct inequalities. Racial segregation, though, is not the kind of differential treatment that corrects inequalities – it instead violates a “fundamental value of democratic societ[y].” The Court cited previous cases it had decided finding school segregation to violate the Convention’s prohibition against discrimination.
In this case, as the conclusion of the Equality Commissioner displays, the Albanian Government did not dispute that segregation was occurring and needed to stop. Albania simply argued that it was unintentional. However, the Court in the past had held “that discrimination that is potentially contrary to the Convention may result from a de facto situation… and does not necessarily require discriminatory intent.” This means that it does not matter if a government means to discriminate against a population. What matters is whether the Government’s policies or action have the effect of discrimination, which the Albanian Government had already essentially admitted.
Although the Court noted that the Government had taken some steps to desegregate, those steps were quite delayed and “incompatible with the time sensitivity of a situation where children were segregated.” Furthermore, the Government failed to implement two measures discussed by the Equality Commissioner in 2015 and 2017: extending the food programme to additional schools in the area and merging Naim Frasheri School with three other schools. These measures were likely to have “immediate beneficial effect” for the Roma and Egyptian children at Naim Frasheri School. The delays and the failure to undertake those two measures amounted to a violation of Article 1 of Protocol no. 12 of the Convention. Thus, under Art. 46 of the Convention, Albania must undertake to implement the desegregation measures originally ordered by the Equality Commissioner. And as reparation to the applicants, the Court awarded EUR 4,500 per household.
One of the novelties of the case is that this is the first Roma segregation case in education that have been brought under the alone-standing prohibition of discrimination of Article 1 of Protocol No. 12. Also, this is the first time when the Court clearly held that the discrimination of the applicants ‘resulted from their over-representation in the school’. Previously the Court had consistently required evidence of another negative consequence aside from the overrepresentation.
On 8 August 2022, the judgment became final under Article 44, Section 2 of the Convention, meaning that it is no longer open to appeal.
The Court’s judgment can be found here.
The European Court’s statement of facts in the cases can be found here and here.
You can find a film here made by Romani activists about segregation at Naim Frasheri school. The film is in Albanian with English subtitles.
