CASE OF D.H. AND OTHERS v. THE CZECH REPUBLIC
No violation of Art. 14+P1-2
8. The applicants’ details are set out in the Appendix. 9. Between 1996 and 1999 the applicants were placed in special schools (zvláštní školy) in Ostrava, either directly or after a period in an ordinary primary school (základní školy). Special schools are a category of specialised school (speciální školy) and are intended for children with learning disabilities who are unable to attend “ordinary” or specialised primary schools. By law, the decision to place a child in a special school is 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 and child guidance centre and requires the consent of the parent or legal guardian of the child. 10. 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. A written decision in the appropriate form was issued by the head teachers of the schools concerned and the applicants’ parents were notified of it. The decisions contained instructions on the right to appeal, a right which none of those concerned exercised. 11. 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 appears that four of the applicants (nos. 5, 6, 11 and 16) were successful in aptitude tests and now attend ordinary schools. 12. 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. 13. On 15 June 1999 all the applicants apart from applicants nos. 1, 2, 10 and 12 (see Appendix) asked the Ostrava Education Authority (Školský úřad) to reconsider, outside the formal appeal procedure, the administrative decisions to place them in special schools (přezkoumání mimo odvolací řízení). They argued that their intellectual capacity had not been reliably tested and that their representatives had not been sufficiently informed of the consequences of consenting to their placement in a special school. 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. 14. On 10 September 1999 the Education Authority informed the applicants that, as the impugned decisions complied with the legislation, they did not satisfy the conditions for bringing proceedings outside the appeal procedure. 15. On 15 June 1999 applicants nos.1 to 12 in the Appendix 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, inter alia on 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 was reflected in the existence of two independent 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). The applicants argued that they had received an inadequate education and an affront to their dignity and asked the Constitutional Court (Ústavní soud) to find a violation of the rights they had relied on, 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 education. 16. 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 and child guidance centre and with the consent of their representatives; furthermore, the representatives had been duly informed of the relevant decisions and none of them 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 Appendix) 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 for Education denied any discrimination and said that parents of Roma children tended 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 18 educational assistants of Roma origin in schools in Ostrava. 17. 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 and child guidance 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. 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. 18. 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 effective 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 were actually referred to in the notice of appeal, it had no jurisdiction to decide the cases of the 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 Appendix), 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 and child guidance 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 the information by liaising with the schools and that there was nothing in the file to show that they had made any enquiries about the possibility of transferring to a primary school. The Constitutional Court therefore ruled that this part of the appeal was manifestly ill-unfounded. 19. Prior to 18 February 2000, section 19(1) provided that to be eligible for secondary-school education pupils had to have successfully completed their primary-school (základní škola) education. Following amendment no. 19/2000, which came into force on 18 February 2000, the amended section 19(1) provided that to be eligible for secondary-school education pupils had to have completed their compulsory education and demonstrated during the admission procedure that they satisfied the conditions of eligibility for their chosen course. 20. Section 31(1) provided that special schools (zvláštní školy) were intended for children with learning disabilities that prevented them from following the curricula in ordinary primary schools or in specialised primary schools (speciální základní škola) intended for children suffering from sensory impairment, illness or disability. 21. Article 2 § 4 of the Decree laid down that the following schools were available for children and pupils suffering from mental disability: specialised nursery schools (speciální mateřské školy), special schools, auxiliary schools (pomocné školy), vocational training centres (odborná učiliště) and practical training schools (praktické školy). 22. Article 6 § 2 stipulated that if during the child’s or the pupil’s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability, the head teacher of the school attended by the child or pupil was required, after an interview with the pupil’s representative, to recommend the pupil’s placement in another specialised school or in an ordinary school. 23. Article 7 stipulated that the decision to enrol or place a child or pupil in, inter alia, a special school was to be taken by the head teacher, provided that the child’s or pupil’s parents or legal guardian consented. The head teacher was entitled to consult sources such as the parents or legal guardian, the school attended by the pupil, educational psychology and child guidance centres, hospitals or clinics, authorities with responsibility for family and child welfare and health centres. The educational psychology and child guidance centre was responsible for assembling all the documents required to reach a decision and required to make a recommendation to the head teacher regarding the type of school. 24. In the section of the report that dealt with the policy aspects of education and training, ECRI stated that public opinion appeared sometimes to be rather negative towards certain groups, especially the Roma/Gypsy community and suggested that further measures should be taken to raise public awareness of the issues of racism and intolerance and to improve tolerance towards all groups in society. It added that special measures should be taken as regards education and training of the members of minority groups, particularly members of the Roma/Gypsy community. 25. With regard to the access of Roma children to education, ECRI said in this report that it was concerned that Roma children continued to be sent to special schools which, besides perpetuating their segregation from mainstream society, severely disadvantaged them for the rest of their lives. The standardised test developed by the Czech Ministry of Education for assessing a child’s mental level was not mandatory and was only one of a battery of tools and methods recommended to the psychological counselling centres. As far as the other element required in order to send a child to a special school – the consent of a parent or legal guardian of the child – ECRI observed that parents making such decisions continued to lack information concerning the long-term negative consequences of sending their children to such schools, which were often presented to parents as an opportunity for their children to receive specialised attention and be with other Roma children. ECRI also said that it had received reports of Roma parents being turned away from regular schools. ECRI also noted that the School Act had entered into force in January 2000 and provided the opportunity for graduates of special schools to apply for admission to secondary schools. According to various sources, that remained largely a theoretical possibility as special schools did not provide children with the knowledge required in order for them to attend regular schools. There were no measures in place to provide additional education to students who had gone through the special school system to bring them to a level where they would be adequately prepared for regular secondary schools. ECRI had received very positive feedback concerning the success of ‘zero grade courses’ (preparatory classes) at preschool level in increasing the number of Roma children who attended regular schools. It expressed its concern, however, over a new trend to maintain the system of segregated education in a new form – this involved special classes in mainstream schools. In that connection, a number of concerned actors were worried that the new draft Schools Act created the possibility for even further separation of Roma through the introduction of a new category of special programmes for the ‘socially disadvantaged’. Lastly, ECRI noted that despite initiatives taken by the Ministry of Education (assistant teachers, training programmes for teachers, revision of the primary school curriculum), the problem of low levels of Roma participation in secondary and tertiary level education described by ECRI in its second report persisted. 26. The document stated that the Government had adopted measures in the education sphere that were focused on providing suitable conditions especially for children from socially and culturally disadvantaged environments, in particular the Romany community, by opening preparatory classes in elementary and special schools. It was noted that “Romany children with average or above-average intellect are often placed in such schools on the basis of results of psychological tests (this happens always with the consent of the parents). These tests are conceived for the majority population and do not take Romany specifics into consideration. Work is being done on restructuring these tests”. In some special schools Romany pupils made up between 80% and 90% of the total number of pupils. 27. The Czech Republic accepted that the Roma were particularly exposed to discrimination and social exclusion and said that it was preparing to introduce comprehensive anti-discrimination tools associated with the implementation of the EU Council Directive implementing the principle of equal treatment. New legislation was due to be enacted in 2004. In the field of Roma education, the report said that the State had taken various measures of affirmative action in order to radically change the present situation of Roma children. The Government regarded the practice of referring large numbers of Roma children to special schools as untenable. The need for affirmative action was due not only to the sociocultural handicap of Roma children, but also to the nature of the whole education system, its inability to sufficiently reflect cultural differences. The draft new Schools Act would bring changes to the special education system (transforming “special schools” into “special primary schools”), providing the children targeted assistance in overcoming their sociocultural handicap. These included preparatory classes, individual study programmes for children in special schools, measures concerning preschool education, an expanded role for assistants from the Roma community and specialised teacher-training programmes. As one of the main problems encountered by Roma pupils was their poor command of the Czech language, the Ministry of Education considered that the best solution (and the only realistic one) would be to provide preparatory classes at the preschool stage for children from a disadvantaged sociocultural background. The report also cited a number of projects and programmes that had been implemented nationally in this sphere (‘Support for Roma integration’, ‘Programme for Roma integration/Multicultural education reform’, and ‘Reintegrating Roma special school pupils in primary schools’).