11.  Details of the applicants’ names and places of residence are set out in the Annex. 12.  According to documents available on the website of the Roma and Travellers Division of the Council of Europe, the Roma originated from the regions situated between north-west India and the Iranian plateau. The first written traces of their arrival in Europe date back to the fourteenth century. Today there are between eight and ten million Roma living in Europe. They are to be found in almost all Council of Europe member States and indeed, in some central and east European countries, they represent over 5% of the population. The majority of them speak Romany, an Indo-European language that is understood by a very large number of Roma in Europe, despite its many variants. In general, Roma also speak the dominant language of the region in which they live, or even several languages. 13.  Although they have been in Europe since the fourteenth century, often they are not recognised by the majority of society as a fully fledged European people and they have suffered throughout their history from rejection and persecution. This culminated in their attempted extermination by the Nazis, who considered them an inferior race. As a result of centuries of rejection, many Roma communities today live in very difficult conditions, often on the fringe of society in the countries where they have settled, and their participation in public life is extremely limited. 14.  In the Czech Republic the Roma have national-minority status and, accordingly, enjoy the special rights associated therewith. The National Minorities Commission of the Government of the Czech Republic, a governmental consultative body without executive power, has responsibility for defending the interests of the national minorities, including the Roma.
As to the number of Roma currently living in the Czech Republic, there is a discrepancy between the official, census-based, statistics and the estimated number. According to the latter, which is available on the website of the Minorities Commission of the Government of the Czech Republic, the Roma community now numbers between 150,000 and 300,000 people. 15.  According to information supplied by the Czech Government, the special schools (zvláštní školy) were established after the First World War for children with special needs, including those suffering from a mental or social handicap. The number of children placed in these schools continued to rise (from 23,000 pupils in 1960 to 59,301 in 1988). Owing to the entrance requirements of the primary schools (základní školy) and the resulting selection process, prior to 1989 most Roma children attended special schools. 16.  Under the terms of the Schools Act (Law no. 29/1984), the legislation applicable in the present case, special schools were a category of specialised school (speciální školy) and were intended for children with mental deficiencies who were unable to attend “ordinary” or specialised primary schools. Under the Act, the decision to place a child in a special school was taken by the head teacher on the basis of the results of tests to measure the child’s intellectual capacity carried out in an educational psychology centre and was subject to the consent of the child’s legal guardian. 17.  Following the switch to the market economy in the 1990s, a number of changes were made to the system of special schools in the Czech Republic. These changes also affected the education of Roma pupils. In 1995 the Ministry of Education issued a directive concerning the provision of additional lessons for pupils who had completed their compulsory education in a special school. Since the 1996/97 school year, preparatory classes for children from disadvantaged social backgrounds have been opened in nursery, primary and special schools. In 1998 the Ministry of Education approved an alternative educational curriculum for children of Roma origin who had been placed in special schools. Roma teaching assistants were also assigned to primary and special schools to assist the teachers and facilitate communication with the families. By virtue of amendment no. 19/2000 to the Schools Act, which came into force on 18 February 2000, pupils who had completed their compulsory education in a special school were also eligible for admission to secondary schools, provided they satisfied the entrance requirements for their chosen course. 18.  According to data supplied by the applicants, which was obtained through questionnaires sent in 1999 to the head teachers of the 8 special schools and 69 primary schools in the town of Ostrava, the total number of pupils placed in special schools in Ostrava came to 1,360, of whom 762 (56%) were Roma. Conversely, Roma represented only 2.26% of the total of 33,372 primary-school pupils in Ostrava. Further, although only 1.8% of non-Roma pupils were placed in special schools, in Ostrava the proportion of Roma pupils assigned to such schools was 50.3%. Accordingly, a Roma child in Ostrava was 27 times more likely to be placed in a special school than a non-Roma child.
According to data from the European Monitoring Centre on Racism and Xenophobia (now the European Union Agency for Fundamental Rights), more than half of Roma children in the Czech Republic attend special schools.
The Advisory Committee on the Framework Convention for the Protection of National Minorities observed in its report of 26 October 2005 that, according to unofficial estimates, the Roma represent up to 70% of pupils enrolled in special schools.
Lastly, according to a comparison of data on fifteen countries, including countries from Europe, Asia and North America, gathered by the Organisation for Economic Cooperation and Development in 1999 and cited in the observations of the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association[1], the Czech Republic ranked second highest in terms of placing children with physiological impairments in special schools and in third place in the table of countries placing children with learning difficulties in such schools. Further, of the eight countries who had provided data on the schooling of children whose difficulties arose from social factors, the Czech Republic was the only one to use special schools; the other countries concerned almost exclusively used ordinary schools for the education of such children. 19.  Between 1996 and 1999 the applicants were placed in special schools in Ostrava, either directly or after a spell in an ordinary primary school. 20.  The material before the Court shows that the applicants’ parents had consented to and in some instances expressly requested their children’s placement in a special school. Consent was indicated by signing a pre-completed form. In the case of applicants nos. 12 and 16, the dates on the forms are later than the dates of the decisions to place the children in special schools. In both instances, the date has been corrected by hand, and one of them is accompanied by a note from the teacher citing a typing error.
The decisions on placement were then taken by the head teachers of the special schools concerned after referring to the recommendations of the educational psychology centres where the applicants had undergone psychological tests. The applicants’ school files contained the report on their examination, including the results of the tests with the examiners’ comments, drawings by the children and, in a number of cases, a questionnaire for the parents.
The written decision concerning the placement was sent to the children’s parents. It contained instructions on the right to appeal, a right which none of them exercised. 21.  On 29 June 1999 the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a primary school. It would appear that four of the applicants (nos. 5, 6, 11 and 16 in the Annex) were successful in aptitude tests and thereafter attended ordinary schools. 22.  In the review and appeals procedures referred to below, the applicants were represented by a lawyer acting on the basis of signed written authorities from their parents. 23.  On 15 June 1999 all the applicants apart from those numbered 1, 2, 10 and 12 in the Annex asked the Ostrava Education Authority (Školský úřad) to reconsider, outside the formal appeal procedure (přezkoumání mimo odvolací řízení), the administrative decisions to place them in special schools. They argued that their intellectual capacity had not been reliably tested and that their representatives had not been adequately informed of the consequences of consenting to their placement in special schools. They therefore asked the Education Authority to revoke the impugned decisions, which they maintained did not comply with the statutory requirements and infringed their right to education without discrimination. 24.  On 10 September 1999 the Education Authority informed the applicants that, as the impugned decisions complied with the legislation, the conditions for bringing proceedings outside the appeal procedure were not satisfied in their case. 25.  On 15 June 1999 applicants nos. 1 to 12 in the Annex lodged a constitutional appeal in which they complained, inter alia, of de facto discrimination in the general functioning of the special-education system. In that connection, they relied on, inter alia, Articles 3 and 14 of the Convention and Article 2 of Protocol No. 1. While acknowledging that they had not appealed against the decisions to place them in special schools, they alleged that they had not been sufficiently informed of the consequences of placement and argued (on the question of the exhaustion of remedies) that their case concerned continuing violations and issues that went far beyond their personal interests.
In their grounds of appeal, the applicants explained that they had been placed in special schools under a practice that had been established in order to implement the relevant statutory rules. In their submission, that practice had resulted in de facto racial segregation and discrimination that were reflected in the existence of two separately organised educational systems for members of different racial groups, namely special schools for the Roma and “ordinary” primary schools for the majority of the population. That difference in treatment was not based on any objective and reasonable justification, amounted to degrading treatment, and had deprived them of the right to education (as the curriculum followed in special schools was inferior and pupils in special schools were unable to return to primary school or to obtain a secondary education other than in a vocational training centre). Arguing that they had received an inadequate education and an affront to their dignity, the applicants asked the Constitutional Court (Ústavní soud) to find a violation of their rights, to quash the decisions to place them in special schools, to order the respondents (the special schools concerned, the Ostrava Education Authority and the Ministry of Education) to refrain from any further violation of their rights and to restore the status quo ante by offering them compensatory lessons. 26.  In their written submissions to the Constitutional Court, the special schools concerned pointed out that all the applicants had been enrolled on the basis of a recommendation from an educational psychology centre and with the consent of their representatives. Furthermore, despite having been notified of the relevant decisions, none of the representatives had decided to appeal. According to the schools, the applicants’ representatives had been informed of the differences between the special-school curriculum and the primary-school curriculum. Regular meetings of teaching staff were held to assess pupils (with a view to their possible transfer to primary school). They added that some of the applicants (nos. 5 to 11 in the Annex) had been advised that there was a possibility of their being placed in primary school.
The Education Authority pointed out in its written submissions that the special schools had their own legal personality, that the impugned decisions contained advice on the right of appeal and that the applicants had at no stage contacted the Schools Inspectorate.
The Ministry of Education denied any discrimination and noted a tendency on the part of the parents of Roma children to have a rather negative attitude to school work. It asserted that each placement in a special school was preceded by an assessment of the child’s intellectual capacity and that parental consent was a decisive factor. It further noted that there were eighteen educational assistants of Roma origin in schools in Ostrava. 27.  In their final written submissions, the applicants pointed out (i) that there was nothing in their school files to show that their progress was being regularly monitored with a view to a possible transfer to primary school, (ii) that the reports from the educational psychology centres contained no information on the tests that were used, and (iii) that their recommendations for placement in a special school were based on grounds such as an insufficient command of the Czech language, an over-tolerant attitude on the part of the parents or an ill-adapted social environment, etc. They also argued that the gaps in their education made a transfer to primary school impossible in practice and that social or cultural differences could not justify the alleged difference in treatment. 28.  On 20 October 1999 the Constitutional Court dismissed the applicants’ appeal, partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it. It nevertheless invited the competent authorities to give careful and constructive consideration to the applicants’ proposals.
(a)  With regard to the complaint of a violation of the applicants’ rights as a result of their placement in special schools, the Constitutional Court held that, as only five decisions had actually been referred to in the notice of appeal, it had no jurisdiction to decide the cases of those applicants who had not appealed against the decisions concerned.
As to the five applicants who had lodged constitutional appeals against the decisions to place them in special schools (nos. 1, 2, 3, 5 and 9 in the Annex), the Constitutional Court decided to disregard the fact that they had not lodged ordinary appeals against those decisions, as it agreed that the scope of their constitutional appeals went beyond their personal interests. However, it found that there was nothing in the material before it to show that the relevant statutory provisions had been interpreted or applied unconstitutionally, since the decisions had been taken by head teachers vested with the necessary authority on the basis of recommendations by educational psychology centres and with the consent of the applicants’ representatives.
(b)  With regard to the complaints of insufficient monitoring of the applicants’ progress at school and of racial discrimination, the Constitutional Court noted that it was not its role to assess the overall social context and found that the applicants had not furnished concrete evidence in support of their allegations. It further noted that the applicants had had a right of appeal against the decisions to place them in special schools, but had not exercised it. As to the objection that insufficient information had been given about the consequences of placement in a special school, the Constitutional Court considered that the applicants’ representatives could have obtained this information by liaising with the schools and that there was nothing in the file to indicate that they had shown any interest in transferring to a primary school. The Constitutional Court therefore ruled that this part of the appeal was manifestly ill-founded.