Discrimination against ethnic minority students in school exams. Non-violation of the ECHR
JUDGMENT
Ádám and others v. Romania 13.10.2020 (app. no. 81114/17 and others)
SUMMARY
The case concerned complaints by the applicants about discrimination against them as members of
the Hungarian minority in the taking of final school exams — they had to take more exams than
ethnic Romanians (two Hungarian tests) over the same number of days, and the Romanian exams
had been difficult for them as non-native speakers.
The Court found in particular that the importance for members of a national minority to study the
official language of the State and the corresponding need to assess their command of it in the
baccalaureate was not called into question in the case.
Nor was it its role to decide on what subjects should be tested or in what order, which came within
States’ discretion (“margin of appreciation”). Furthermore, the extra tests the applicants had had to
take had been a result of their own choice to study in their mother tongue. Neither the content of
the curriculum nor the scheduling of the exams had caused a violation of the applicants’ rights.
PROVISION
Article 1 of Protocol No. 12
PRINCIPAL FACTS
The applicants are six Romanian nationals, Katalin-Ibolya Ádám, born in 1995 (application no.
81114/17); Krisztián Petres, born in 1999 (no. 49716/18); Ernõ Bakos, born in 1999 (no. 50913/18);
Norbert Ambrus, born in 1998 (no. 52370/18); Csaba-Lajos Forika, born in 1999 (no. 54444/18); and
Csaba Maxem, born in 1998 (no. 54475/18).
They are ethnic Hungarians and undertook their education in their mother tongue. In order to
receive their baccalaureate (school-leaving) qualification they had to sit exams to test their
Romanian and their Hungarian, having to take two more exams than ethnic Romanians.
They all failed their baccalaureate because they did not pass the exams in Romanian language and
literature (Ms Ádám, Mr Petres, Mr Bakos, Mr Forika and Mr Maxem) or Hungarian language and
literature (Mr Ambrus). They retook the exams but failed again, although they obtained the required
grades in the other exams in the baccalaureate.
The Ministry of Education sets the timetable for the baccalaureate at the beginning of each school
year. The written exams are organised over consecutive days: pupils sitting the additional exams in
their mother tongue have three consecutive days of written examinations, whereas pupils not sitting
such tests have a day of rest in between.
Relying on Article 1 of Protocol No. 12 (general prohibition of discrimination) to the European
Convention on Human Rights, the applicants complained that they had been discriminated against
because of the way in which the baccalaureate was organised, as in the same short time period they
had had to take two additional exams in the baccalaureate compared to their Romanian peers.
Moreover, the exams they had had to sit in Romanian language and literature had been very difficult
for them.
THE DECISION OF THE COURT…
The Court joined the applications and by a majority of four votes to three declared them admissible.
The applicants reiterated that they had not only complained about the time allowed for rest and
preparation between exams, but also about the fact that the tests they had had to sit in Romanian
language and literature had been very difficult.
They were not questioning the usefulness per se of learning Romanian or being tested on it in final
exams, however, testing their knowledge on an equal footing with native speakers was, in their view,
a clear case of discrimination. Indeed, according to them, the Romanian language and literature
exams were difficult, even for native speakers of that language.
The Government argued, among other things, that pupils could choose their language of instruction
and there was no obligation for an ethnic Hungarian to go to a school where the teaching was in that
language. The treatment that the applicants had complained of did not amount to discrimination.
The Court held that the case-law standards it had developed on the protection afforded by Article 14
(prohibition of discrimination) were applicable to cases brought under Article 1 of Protocol No. 12.
Among other things, it noted that for the purposes of Article 14, a difference in treatment was
discriminatory if it “has no objective and reasonable justification”, that is, if it did not pursue a
“legitimate aim” or there was no “reasonable relationship of proportionality” between the means
employed and the aim sought to be realised.
It considered that its role was not to replace the State in deciding what subjects would be tested in
the baccalaureate or the order and pace of the exams. A certain amount of discretion (“margin of
appreciation”) had to be left to the national authorities, who were in principle better placed than an
international court to evaluate local needs and conditions.
Nor was the importance for members of a national minority to study the official language of the
State and the corresponding need to assess their command of it in the baccalaureate called into
question in the case.
It took note of an emerging international consensus among the Contracting States of the Council of
Europe to recognise the special needs of minorities and an obligation to protect their security,
identity and lifestyle. It also reviewed the various measures taken by Romania in the field of
education of minorities.
While there had been setbacks in implementing such measures, the Court could not conclude that
the content of the curriculum itself imposed an excessive burden on the applicants for the purposes
of Article 1 of Protocol No. 12 to the Convention.
Looking at the sequence of the exams, the Court observed that pupils in the applicants’ situation had
to pass two more exams than pupils studying in Romanian. However, that was an inevitable
consequence of their own choice to be educated in Hungarian. Indeed, there was no obligation by
law for minority pupils to study in their mother tongue.
Furthermore, the timetable for the exams was set at the beginning of each school year and did not
seem to differ significantly from one year to another, meaning that pupils concerned had sufficient
time to prepare both academically and mentally for the exams. Nor could it find that the schedule of
the baccalaureate, viewed as a whole, imposed an excessive burden on the applicants, or that they
had had on average significantly less time to rest than their Romanian peers.
It found that the same conclusion remained valid when the alleged imbalance was regarded
exclusively from the standpoint of the exams that the applicants had to take over consecutive days,
unlike their Romanian peers, who had a day of rest in between. Given the particular circumstances,
the Court was not convinced that the inconvenience suffered by the applicants was so significant as
to reach the threshold of Article 1 of Protocol No. 12 to the Convention.
The Court also took note of statistics provided by the Government which showed that there had
been similar success rates in the final baccalaureate exams for all pupils from 2013 to 2018.
The Court found no evidence to conclude that the applicants had been deprived in practice of a real
choice to receive education in their mother tongue or that the State had an agenda of forced
assimilation, as argued by the applicants. Nor had the consequences for the applicants of the choice
of language of study and the authorities’ organisation of education in a minority language and
baccalaureate exams placed them in a different situation that was sufficiently significant for the
purposes of Article 1 of Protocol No. 12 to the Convention.
There had accordingly been no violation of Article 1 of Protocol No. 12 to the Convention.
Separate opinion and statement of dissent
Judges Kjølbro, Ranzoni and Schukking expressed a joint partly dissenting opinion, and Judges Motoc
and Paczolay expressed a statement of dissent. The opinion and statement are annexed to the
judgment.
