Schools classes made up of a majority of Roma and Egyptian minorities, prevented the integration of children into society and constituted prohibited discrimination
JUDGMENT
Χ. and others v. Albania 31.05.2022 (app. no. 73548/17 and 45521/19)
SUMMARY
Prohibition of racial segregation. Coexistence of different ethnicities in the school community.
The applicants belong to Roma and Egyptian families. Food programs for the children of these minorities were given as an incentive for them to enroll in school. However, this program has led to an increased proportion of Roma and Egyptian students, which exceeded 90% of the students in each class in a particular school, depriving the children of these minorities of the opportunity to integrate into society. Domestic authorities have failed to take action to eliminate discrimination. The applicants complained of prohibited discrimination.
The Court reiterated the principle that the coexistence of members of society free from racial segregation is a fundamental value of democratic societies.
With regard to this area of school segregation, the ECtHR has already considered that it is a prohibition of discrimination, inter alia, the failure of the authorities to take all necessary measures to ensure the rapid progress of students in language learning and their subsequent integration into mixed classes.
In this regard, it found that despite the unintentionally increasing proportion of Roma and Egyptian minorities in the school, the domestic authorities did not take the necessary measures to avoid discrimination, such as expanding the food program to all children and merging school departments. The ECtHR held that the delays and non-implementation of appropriate measures to abolish segregation were not justified and that there had been a violation of Article 1 of the 12th Protocol.
PROVISION
Article 1 of the 12th Additional Protocol
PRINCIPAL FACTS
The applicants are 18 Albanian nationals of Roma and Egyptian ethnicity who together make up six
households. They live in Korça (Albania).
The applicants allege that Roma or Egyptian ethnic pupils account for 89-100% of pupils in Naim
Frashëri primary school – which their children attend – in an average year, despite being a minority
of the town’s population. The case concerns the applicants’ complaints to the authorities concerning
that situation, and the Commissioner for the Protection from Discrimination’s subsequent order that
the Ministry of Education and Sport take “immediate measures to improve the situation and change
the ratio” between Roma/Egyptian and other pupils attending the school”. They allege that the
situation has not been resolved.
Relying on Article 1 of Protocol No. 12 (general prohibition of discrimination) to the European
Convention on Human Rights the applicants complain of discrimination and segregation in their
children’s education owing to the over-representation of Egyptian and Roma pupils in Naim Frashëri
school.
THE DECISION OF THE COURT…
Article 1 of Protocol No. 12
(a) Exhaustion of domestic remedies – The applicants had not been required to file a discrimination claim with the domestic courts, which would essentially have had the same objective as the ERRC’s action before the Commissioner and which, in any event, had not been shown to be an effective remedy in the present case. In the absence of an appeal by the authorities against the Commissioner’s decision, that decision had become final and enforceable.
(b) Merits – The right to inclusive education, in the enjoyment of which the applicants had alleged to have been treated differently, was provided for by domestic law. It had not been disputed in the domestic proceedings or before the Court that the applicants’ situation had amounted to segregation and that desegregation measures had been called for. Nor had the applicants contested the Government’s position that the situation had been unintentional. Notwithstanding discrimination that was potentially contrary to the Convention might result from a de facto situation and did not necessarily require discriminatory intent.
The salient question in the instant case was therefore whether the Government had complied with their positive obligation to take steps to correct the applicants’ factual inequality and to avoid the perpetuation of the discrimination that had resulted from their over-representation in the school thereby breaking their circle of marginalization and allowing them to live as equal citizens from the early stages of their life. The Court replied in the negative. First of all, although two measures had been taken by the authorities to address the applicants’ segregation, these had been implemented with delays which had been incompatible both with the time sensitivity of a situation where children had been segregated and the Commissioner’s decision that measures be taken “immediately”. More specifically, the decision to remove the ethnicity criterion for the pupils that benefited from the food support programme, in an effort to attract pupils of all ethnicities in the school, had been adopted almost one and a half years after the Commissioner’s decision whereas the renovation of the school building had ended four years after that decision. Secondly, the Government had not set forth any objective reason for failing to implement the measures that had been discussed by the competent Ministry, namely the extension of the food support programme to four additional schools in the area – which could presumably have had encouraged some of the Roma/Egyptian pupils of the school to move to other schools – and the merger of the “Naim Frashëri” school with three other non-segregated schools. Both these measures had been likely to have a had more immediate beneficial effect on the Roma and Egyptian children. In this regard, the Court was unable to accept the authorities’ justification that the merger had not been implemented due to the reconstruction of the “Naim Frashëri” school, as the reconstruction work had lasted only for a limited period of time. Indeed, the merger appeared a very pertinent solution and could have contributed to the creation of schools where the ratio between Roma/Egyptian and other pupils had been reasonably proportional to the city-wide ratio for elementary schools. The authorities had already implemented similar solutions in respect of segregated schools elsewhere in the country where in addition they had also provided transportation for the pupils. While it was not for the Court to indicate the specific measures to be undertaken to remedy a school segregation situation, it was nevertheless difficult to understand the reasons why this approach had not been implemented in the present case too.
The Court had already found a violation of the prohibition of discrimination in a similar context in Lavida and Others v. Greece where the State had failed to implement desegregating measures. Likewise, in the instance case, the delays and the non-implementation of appropriate desegregating measures could not be considered as having had an objective and reasonable justification.
Conclusion: violation (unanimously)
Article 41: EUR 4,500 per applicants’ household in respect of non-pecuniary damage.
Article 46: The respondent State had to take measures to end the discrimination of Roma and Egyptian pupils of the “Naim Frashëri” school as ordered by the Commissioner’s decision.
