5.  The applicants were born in 1994 and 1992 respectively and live in Nyíregyháza. 6.  The applicants are two young Roma men, who were diagnosed as having mental disabilities. As a result of these diagnoses, the applicants were educated at the Göllesz Viktor Remedial Primary and Vocational School, a remedial school (“special educational programme” or “special” school) in the city of Nyíregyháza, created for children with mental disabilities. 7.  The proportion of Roma students at the Göllesz Viktor Remedial Primary and Vocational School was 40 to 50% in the last ten years. Statistical data indicate that in 2007 Roma represented 8.7% of the total number of pupils attending primary school in Nyíregyháza. In 1993, the last year when ethnic data were officially collected in public education in Hungary, at least 42% of the children in special educational programme were of Roma origin according to official estimates, though they represented only 8.22% of the total student body. 8.  According to statistical data in the Statistical Yearbook of Education, in 2007/2008 only 0.4–0.6% of students with special needs had the opportunity to participate in integrated mainstream secondary education providing the Baccalaureate. Although one of the second applicant’s classmates was admitted to a secondary vocational school offering the Baccalaureate, neither of the applicants was enrolled in a Baccalaureate programme, which limited their access to higher education and employment. The first applicant was unable to follow a course to become a dance teacher, the career of his father; instead, he received special vocational training to become a baker. The second applicant continued his studies in a mainstream secondary vocational school which did not offer the Baccalaureate, and was unable to pursue his ambition to become a car mechanic. 9.  Scholarly literature suggests that the systemic misdiagnosis of Roma children as mentally disabled has been a tool to segregate Roma children from non-Roma children in the Hungarian public school system since at least the 1970s. 10.  The national Gypsy research in 1971 made it clear that a major obstacle to the education of Gypsy children was the existence of remedial (special) schools. In 1974/1975, 11.7% of Gypsy children attended special schools and classes. Due to the steady increase in Gypsy enrolment, by 1985/1986 their proportion had reached 17.5%, whereas only 2% of majority Hungarian students studied in special schools and classes. Eight grades finished in special education amounted to six grades in a normal school. Between 1972 and 1975, almost 50% of the lower grade special school students in Budapest were re-tested. The most significant result of the Budapest review was that if the borderline between sound and disabled mental abilities were set at IQ 70, the figure recommended by the World Health Organisation (WHO), then only 49.3% of students participating in special education qualified as mentally disabled, whereas 50.7% qualified as normal, of whom 12% had average intellect and 38.7% were borderline cases, that is, on the brink of mental retardation. However, only 7% were qualified as having average mental abilities through a complex evaluation. The complex evaluation qualified children whose test results suggested otherwise as intellectually disabled. In order to come to this conclusion, the category of familial intellectual disability was introduced, a notion distinct from pathological mental disability. 11.  According to the Hungarian authorities, in 2004, 5.3% of primary school children were mentally disabled in Hungary, whereas this ratio stood at 2.5% in the European Union. In the last decade the rate of mentally disabled children has been continuously increasing in Hungary, especially in the ‘mild mental disability’ and ‘other disability’ categories. Children with disadvantaged background, especially Roma ones, are significantly over-represented amongst children with a disability. 12.  The shortcomings of the diagnostic system were acknowledged by State authorities when in 2003 the Ministry of Education launched a programme entitled “Out of the Back Bench” with the stated aim of reviewing children and, after re-diagnosis, channelling those back to mainstream school who had been misdiagnosed. Through the programme, 2,100 children were reassessed and 11% of the re-diagnosed children were channelled back to normal school. In Szabolcs-Szatmár-Bereg County, where the applicants are from, this rate was 16%. 13.  Part of the reason for the fact that so many children were considered disabled was that the definition of special educational needs in Act no. LXXIX of 1993 on Public Education (“the PEA”) and the definition of mental disability prior to 1 September 2003 (see paragraph 63 below) went beyond mental disability and included educational challenge, dyslexia and behavioural problems. 14.  In 2007, the National Expert and Rehabilitation Committee (NERC) explained that an IQ between 70 and 85 represented a borderline intellect. A child in this range of IQ could have serious and persistent learning impairment. The expert evaluating each case had to assess what factors tilted the balance towards mental disability or sound mental ability. For example, weak abilities of abstraction or associative learning could indicate mental disability even above IQ 70. “Borderline intellect” was not on its own considered as mental retardation or a cause for placement in special school. 15.  In 2004 the Minister of Education requested the expert panels to stop transferring children with scores above IQ 70 to special schools. That year, a new protocol and new standardised proceedings were adopted, calling for the disadvantaged situation of the child to be taken into account. If a child spoke the language of an ethnic minority, for instance, he or she could not be examined using verbal tests in Hungarian. Still, inequalities persisted. The greatest difference between Roma and non-Roma children occurred in a performance test, the so-called “Mosaic Test”. One explanation for this is that Roma children have less experience with toys and games where units from bits or pictures from pieces (e.g. toy cubes with different pictures on each side, or puzzles, etc.) had to be assembled. 16.  Mr Horváth started elementary education in the Göllesz Viktor Remedial Primary and Vocational School on the basis of the recommendation of the Expert and Rehabilitation Panel of Szabolcs-Szatmár-Bereg County (“the Expert Panel”). His examination was requested on 19 April 2001 by the nursery he was attending at that time. The nursery claimed that his mental and social abilities were lower than normal for his age, which showed in his sense of logic, drafting skills and communication. He spent very little time in the nursery, as he was sick most of the time. This, although a common cause for bad performance in tests, was not taken into account when his results were assessed. 17.  The examination requested by the nursery was performed on 17 May 2001. In addition to the observation of his behaviour, his abilities (verbal, counting, cognitive, attention/concentration, visuo-motor coordination) and his performance, the following IQ tests were done: “Budapest Binet Test” – IQ 64; “Coloured Raven Test” – IQ 83; “Goodenough ‘draw-a-person’ Test” – DQ 67. The Expert Panel did not elaborate in its opinion on the causes of the disparate results. 18.  In its opinion, the Expert Panel diagnosed Mr Horváth with “mild mental disability”, of which the origin was declared unknown. The diagnosis stated that Mr Horváth was “two and a half years behind normal”, together with an immature central nervous system. Therefore, he was channelled to remedial school. As opposed to the WHO value of IQ 70, expert panels in Hungary applied, according to the Ministry of National Resources, IQ 86 as a border value between sound intellectual ability and mild mental disability. 19.  Mr Horváth’s parents had been told by the Expert Panel even before the examination took place that he was going to be placed in a remedial school and they had been asked to sign the expert opinion before the examination took place. 20.  On 3 December 2002 the Expert Panel re-examined Mr Horváth. It found that there was no development in his abilities, and reported that he was still suffering from mild mental disability. 21.  On 28 April 2005 the Expert Panel again examined Mr Horváth. According to this examination, his “Raven Test” result was IQ 61. Therefore the Expert Panel declared that his status had not changed and upheld its previous opinion. 22.  On 20 March 2007 another examination took place. This time, Mr Horváth’s “Raven Test” value was IQ 71. The Expert Panel noted that he had better knowledge than this test score reflected, had good results at school in 2006 and 2007, was integrated in his school system and able to study individually, had no impediment in speech and only needed some reassurance. In addition, it noted that he was active in classes, hard-working and complied with all the requirements of the curriculum. Noting that Mr Horváth studied in a remedial school, the Expert Panel again diagnosed him with mild mental disability and special educational needs. Therefore it upheld his placement in remedial school. 23.  Mr Horváth’s parents were not invited to participate in the diagnostic assessments. His father signed only the opinion of 17 May 2001. It is unclear if the parents were provided with information about the procedure and their respective rights, including a right to appeal, or if a copy of the opinion was given to them. His father accompanied Mr Horváth to the first examination but was not allowed to attend the examination itself. The parents were told the result but no explanation about the consequences was given. 24.  On 26 September and 2 October 2008 Mr Horváth was re-examined by the NERC as ordered by the first instance court (see paragraph 38 below). This opinion stated that the applicant had “mild mental disability” although the causes of the disability could not be established. 25.  After spending seven months in nursery, Mr Kiss started elementary education in September 1999 in a mainstream school, Primary School No. 13 located in a Roma settlement of Nyíregyháza. In its decision of 4 January 1999, the local pedagogical advisory service concluded that he had learning difficulties “deriving from his disadvantaged social and cultural background” and advised him to be educated under a special programme but in a mainstream school. On 14 December 1999 the school requested an expert diagnosis based on his results in the first quarter of the school year, claiming that he had poor results, was often tired, his attention was volatile and his vocabulary poor. His IQ then measured 73. 26.  On 15 May 2000 the Expert Panel diagnosed Mr Kiss with “mild mental disability”. According to the “Budapest Binet Test”, his IQ was 63, and he scored IQ 83 in the “Raven Test”. Relying on the results, the Expert Panel arranged for Mr Kiss to be placed at a school for children with mild mental disabilities. As rehabilitation, the Expert Panel proposed that his concentration and analytical-synthetical ability should be developed. The Panel’s opinion did not contain any explanation for the discrepancies between Mr Kiss’s IQ results in the various tests. 27.  Mr Kiss’s parents objected to the placement of their child in the remedial school and insisted that he should be educated in a mainstream school, but in vain. They were not informed of their right to appeal against the Panel’s decision. Mr Kiss was then placed in Göllesz Viktor Remedial Primary and Vocational School. 28.  During his studies, Mr Kiss won numerous competitions, including a poetry reading contest and sports competitions, and he was an A student until 7th grade. However, his teacher told him that he could not continue his studies to become a car mechanic as he intended to, because as a remedial school pupil, he could only choose between training courses offered by a special vocational school. 29.  The Expert Panel subsequently re-assessed Mr Kiss twice, on 14 December 2002 and 27 April 2005. On the latter occasion the Expert Panel noted that, despite the fact that he had achieved good results at school, his analytical thinking was underdeveloped. His IQ based on the “Raven Test” scored 71, yet the Expert Panel stated that he needed to be educated further at the remedial school. 30.  During the court procedure in the case (see below), the first-instance court ordered that Mr Kiss be examined by the NERC. According to the expert opinion of 20 November 2008, his mental capacity was normal, he was not mentally disabled and his SQ (social quotient) score was 90, which excluded mental disability. However, he had significant deficiencies with regard to acquired knowledge and had a learning impairment. As with the first applicant, the NERC found that the Expert Panel’s decision should have noted that socio-cultural factors had played a significant role in the shaping of their status from an early age, but in fact these factors and Mr Kiss’s disadvantaged situation were not taken into account.
The NERC concluded that both applicants were provided with education adequate to their abilities. 31.  In August 2005 both applicants participated in a summer camp where the testing of 61 children with ‘special educational needs’ took place. The testing was carried out by independent experts. 32.  Both applicants were assessed with various tests. With regard to Mr Horváth, the experts noted that his “Raven Test” (IQ 83) was under the average, but did not correspond to the “mentally disabled” score; therefore, he was not mentally disabled. His “Bender B Test” referred to immature nervous system potentially causing behavioural problems and problems in studying but he was not considered mentally disabled or unfit for an integrated mainstream class. 33.  Mr Kiss’s “Raven Test” score was IQ 90, his “MAVGYI-R Test” score was IQ 79, and his verbal intelligence was 91. According to the assessment, he suffered from immaturity of the nervous system and dyslexia. The experts noted that he was sound of mind and could be educated in a school with a normal curriculum. They suggested immediate intervention by the authorities in order to place him into a mainstream school and to provide him with appropriate education. The experts also suggested a thorough pedagogical examination and the development of a subsequent individual learning plan with pedagogical and psychological help. They noted that he had to catch up with his studies in order to reduce the deficiencies he had as a result of studying under a lower curriculum. 34.  The experts noted that the diagnostic methods applied should be reviewed, and that Roma children could have performed better in the tests if those had not been designed for children belonging to the ethnic majority. They stressed that the “Raven Test” measured intelligence only in a narrow margin and therefore provided less data with regard to intelligence. The experts further recommended that the “MAVGYI-R” child intelligence test should be reviewed and updated as it was outmoded and because oral tests were culturally biased and poorly compatible with the present lifestyle and knowledge of children. The experts also noted that the intelligence tests had a close correlation with school qualification; therefore education in a remedial class might significantly influence the results of an intelligence test of a 13/14-year-old child.
The NERC found the independent experts’ conclusions open to doubt. 35.  On 13 November 2006 the applicants filed a claim for damages with the Szabolcs-Szatmár-Bereg County Regional Court, requesting the court to establish a violation of the principle of equal treatment amounting to a violation of their personality rights under section 76 of the Civil Code and section 77(3) of the PEA. The action was directed against the Expert Panel, the Szabolcs-Szatmár-Bereg County Council and the Göllesz Viktor Remedial Primary and Vocational School. 36.  The applicants claimed that the Expert Panel had discriminated against them and misdiagnosed them as being “mildly mentally disabled” on the basis of their ethnicity, social and economic background, and had subsequently ordered them to be educated in a special school, although they had normal abilities. They asserted that the expert panels were free to choose the tests applied by them, and it was well-known among experts that some tests were culturally biased and led to misdiagnosis of disadvantaged children, especially Roma ones. This systemic error originated in the flawed diagnostic system itself, which did not take into account the social or cultural background of Roma children, was as such culturally biased, and therefore led to the misdiagnosis of Roma children. They claimed that it was the responsibility of the experts who were required by the law to be experienced in the field of mental disabilities and thus obliged to know the symptoms of such disabilities to ensure that only children with real mental disability were educated in special/disabled/special educational needs classes. In addition, and in violation of the respective rules of procedure, the applicants’ parents had not been informed of the Panel’s procedure or its consequences or of their rights to participate in the proceedings and to appeal against the decisions in question, so their constitutional right to a remedy was violated. 37.  The applicants further asserted that the County Council had failed effectively to control the Expert Panel. They also claimed that the teachers working at the Remedial School should have noticed that they were of normal abilities. 38.  The Regional Court ordered the applicants to be examined by the NERC. 39.  On 27 May 2009 the Regional Court found that the aggregate of the respondents’ handlings of the applicants’ education had amounted to a violation of their rights to equal treatment and education and therefore ordered them, jointly and severally, to pay 1,000,000 Hungarian forints (HUF) in damages to each applicant.
The court explained that it was called on to investigate whether the respondents had complied with the Constitution and the PEA, that is, ensured the applicants’ civil rights without any discrimination, promoted the realisation of equality before the law with positive measures aiming to eliminate their inequalities of opportunity, and provided them with education in accordance with their abilities. It reasoned that – while the statutory definition of “special needs” had been amended several times in the relevant period – the relevant regulations clearly stipulated that the expert panels should individualise each case, decide on possible special needs in each case according to the needs and circumstances of the individual child, identify the reasons underlying any special needs, and establish specific support services which a child needed according to the extent of disability. 40.  The court held that this kind of individualisation was lacking with regard to the applicants’ diagnoses and that the Expert Panel had failed to identify those specific professional services that would help the applicants in their education. It had failed to establish during the applicants’ examination and re-examination the reasons for which they were in need of special education, and whether they needed that as a result of their behaviour or of organic or non-organic reasons. 41.  The court emphasised that the principle of equal treatment required that the Expert Panel decide whether children reaching school age might study in schools with a standard curriculum or in remedial schools with a special one. At the same time, the court noted that, in the present case, the operation of the Expert Panel was stalled due to ongoing restructuring and the low number of professional and other staff. Therefore, the Expert Panel could not perform its duty of continuous control examinations. 42.  Moreover, in the court’s view, the County Council had failed to ensure effective control over the Expert Panel and therefore failed to note that the Panel had not informed the parents appropriately. In addition, the County Council had not ensured that the expert decisions were individualised according to the law.
Therefore, the respondents had violated the applicants’ right to equal treatment. 43.  The Expert Panel did not appeal and so the above decision became final and enforceable with regard to it.
On appeal by the Remedial School and the County Council, on 5 November 2009 the Debrecen Court of Appeal reversed the first-instance judgment and dismissed the applicants’ claims against those respondents. 44.  The Court of Appeal accepted the Remedial School’s defence, namely that it had done no more than enrol the applicants according to the Expert Panel’s decision. It held that it was for the County Council to ensure effective control over the lawful operation of the Remedial School and the Expert Panel. An omission in this regard might establish the County Council’s liability, in particular because the parents’ participatory rights had not been respected. 45.  The Court of Appeal further noted that, in order to prevent the misdiagnosis and consequent segregation of Roma children into remedial schools, there was a need, unfulfilled as yet, for the development of a new diagnostic testing system which should take into account the cultural, linguistic and social background of children. However, it held that the lack of appropriate diagnostic tools and the subsequent placement of the applicants into remedial schools did not have any connection to their ethnic origin, and therefore found no discrimination against the applicants, concluding that their personality rights had not been violated. In its view, the applicants had not suffered any damage as a result of the unlawful conduct of the respondents, since, according to the court-appointed experts’ opinion, they had been educated in accordance with their mental abilities. That opinion effectively confirmed the Expert Panel’s decisions.
The Court of Appeal’s judgment further contains the following passage:
“Examining the – not at all comprehensive – amendments [of the PEA and the decrees on its implementation which occurred after 1 January 2007], it can be established on the one hand that those amendments were predominantly and evidently occasioned by the progress of related science, the researches and the results of surveys, and on the other hand that the following of legislative developments in this period was almost an impossible task for those applying the law.” 46.  The applicants subsequently submitted a petition for review to the Supreme Court. They argued that there was no national professional standard established with regard to the diagnostic system in Hungary. The well-known systemic errors of the diagnostic system, together with the disregard of the socially, culturally and linguistically disadvantaged background, had resulted in a disproportionately high number of Roma children diagnosed as having “mild mental disability”. 47.  The applicants requested the Supreme Court to establish, as an analogy with the case of D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007‑IV), the misdiagnosis of Roma children, that is, that the channelling of Roma children with normal mental abilities into remedial schools constituted discrimination. Such misdiagnosis represented direct – or alternatively indirect – discrimination, based on the ethnic, social and economic background of the applicants. 48.  The applicants further claimed that the Court of Appeal had wrongly concluded that there was no connection between the lack of appropriate diagnostic tools and the ethnic origin of the applicants. The fact that the tests themselves had no indication of ethnicity did not preclude that they forced a disproportionately high number of Roma children into a disadvantaged position in comparison with majority children. This practice amounted to a violation of section 9 (indirect discrimination) of Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities (“the ETA”). In addition, the fact that the experts had disregarded the specific social, cultural and language components when assessing the test results had led to direct discrimination in breach of section 8 of the ETA. 49.  The applicants also asserted that the respondents had not acted with due diligence in the circumstances, when – aware of the systemic error of the diagnostic system – they had failed to act according to international standards. In addition, Mr Kiss had been placed in a remedial school despite the explicit objection of the parents. 50.  The Supreme Court reviewed the second-instance judgment and found it partly unfounded. It stated as follows:
“Considering the relevant provisions of the [ETA] and the [PEA] ... the Supreme Court has to decide whether the respondents discriminated against the plaintiffs on the basis of their ethnic, social, economic and cultural background, which resulted in the deprivation of their rights to be educated in accordance with their abilities and therefore their rights to equal treatment, and subsequently whether their personality rights have been violated.” 51.  The Supreme Court upheld the second-instance judgment with regard to the finding that the conduct of the Remedial School and the County Council had not violated the applicants’ right to equal treatment, either in terms of direct or indirect discrimination. 52.  The Supreme Court further noted:
“The systemic errors of the diagnostic system leading to misdiagnosis – regardless of its impact on the applicants – could not establish the respondents’ liability ... The creation of an appropriate professional protocol which considers the special disadvantaged situation of Roma children and alleviates the systemic errors of the diagnostic system is the duty of the State.” 53.  The Supreme Court noted, however, that:
“[T]he failure of the State to create such a professional protocol and [an eventual] violation of the applicants’ human rights as a result of these systemic errors exceed the competence of the Supreme Court ... the applicants may seek to have a violation of their human rights established before the European Court of Human Rights. Therefore the Supreme Court has not decided on the merit of this issue.” 54.  The Supreme Court further examined whether the respondents’ liability could be established under the general rules of tort liability regardless of the fact that it had not established a violation of the applicants’ personality rights. It found no such liability in respect of the Remedial School. However, it observed that the Expert Panel’s handling of the parental rights had violated the relevant law (Ministerial Decree no. 14/1994. (VI.24.) MKM). The County Council was found liable for this on account of its failure to supervise the legality, or to organise the supervision of the legality, of the functioning of the Expert Panel, as well as to put an end to the unlawful practice. The prejudice to the applicants was caused by their deprivation of the right to a remedy provided for by law and thereby of the theoretical chance of obtaining a more favourable assessment of their learning abilities.
The Supreme Court consequently upheld the first-instance judgment with regard to the payment of HUF 1,000,000 in damages to each applicant by the Expert Panel, out of which sum the County Council was obliged to pay HUF 300,000, on account of its deficient control.
This decision was served on 11 August 2010.