HORVATH AND VADASZI v. HUNGARY
Inadmissible
András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
The applicants, Mr Tibor Horváth and Mr Géza Vadászi, are Hungarian nationals who were born on 14 August and 3 November 1987 respectively, and live in Kesznyéten. They were represented before the Court by Ms L. Farkas, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Ministry of Public Administration and Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are of Roma origin. Following their qualification in 1994 by the Borsod-Abaúj-Zemplén County Expert and Rehabilitation Panel (which consisted of a paediatrician, a psychologist and a specialist in therapeutic pedagogy) as having mild intellectual disabilities (enyhe fokban értelmi fogyatékos), they were placed in a special class of the Kesznyéten School, as from the academic year 1994/95. This remedial class was taught physically segregated. The teacher, who was in charge of this class from 1996 until 2000, did not have a degree in special pedagogy. The applicants' intellectual ability was reviewed in November 2000. This examination corroborated the findings of 1994. On 21 June 2004 the applicants' lawyer filed a criminal complaint against unknown perpetrators on charges of forging public documents and endangering minors. She alleged in essence that the school certificates issued in respect of the applicants and other pupils did not reflect their real situation in the special class, that the allegedly reduced curriculum jeopardised their intellectual progress, in particular because the teacher in charge did not have the appropriate qualification, and that the assignment of the applicants to the special class served the purpose of their physical segregation. In the course of the ensuing investigation conducted by the Tiszaújváros Police Department, a public education expert was appointed. Furthermore, a forensic psychologist examined the applicants in October 2004. The findings of this expert were identical to those established in 1994 and 2000. He found that Mr Vadászi was mentally challenged (értelmi sérült) while Mr Horváth represented a borderline case of mental retardation (mentálisan retardált határeset). He concluded that their placement in the special class could not jeopardise their mental development in view of their original disabilities. On 2 December 2004 the Miskolc District Public Prosecutor's Office discontinued the investigation. It observed that the legal hypothesis of the offence of endangerment of minors was only met if a grave breach of duty had been committed by the school officials, into which category lesser educational irregularities did not fall. On 18 January 2005 the Borsod-Abaúj-Zemplén County Public Prosecutor's Office finally dismissed a complaint lodged by the applicant's lawyer. It observed that a scrutiny of the documentation of the school had revealed only minor irregularities, rather than a forgery of documents. It also held that the testimonies given by the applicants and other pupils of the school contradicted the documents and the findings of the education expert and, given their subjective nature, were unsuitable for the establishment of a grave breach of duty on the part of the school's officials. It moreover drew the applicants' attention to the possibility of pursuing a civil action in respect of their allegations. Subsequently, the applicants' lawyer retained a private expert in clinical psychology and public education. In that expert's opinion, established in February 2005, the applicants' placement in the special class had endangered their mental and psychological development, because they had not suffered from the kind of serious mental disability which would justify their separate education. Relying on that opinion, on 28 February 2005 the applicants' lawyer preferred a private bill of indictment, on the charge of endangering minors, against both the director of the school and the pedagogical expert responsible for the review of the applicants' intellectual ability in 2000. In the indictment it was alleged that their placement in the special class endangered the applicants' mental, psychological and educational development. No mention of their ethnic origin or assertion of discrimination was made in the motion. On 30 June 2005 the Miskolc District Court dismissed the motion without an examination on the merits. It observed that the charge in respect of the expert was incompatible ratione personae with section 195(1) of the Criminal Code and as such could not be retained, since she had never been under any obligation to educate, survey or take care of the applicants. Moreover, the charge in respect of the director was time-barred, since more than five years had elapsed between her last relevant act in the case in September 1999 – namely, when she had assigned an unqualified teacher to the special class – and the introduction of the motion by the applicants on 28 February 2005. Section 77(3) of the Public Education Act provides as relevant: “The ... school is fully liable, irrespective of its culpability, for any damage caused to ... a pupil in respect of ... [his/her] education ... (tanulói jogviszonnyal ... összefüggésben okozott). The provisions of the ... Civil Code shall be applicable to compensation [for such damage], with the proviso that the institution ... can only be exempted from its liability if it proves that the damage was caused by force majeure...” Since 2004, compensation on this ground has been awarded by civil courts in several cases concerning allegations similar to those in the present application. Section 195(1) of the Criminal Code provides that any person under the obligation to educate, survey or take care of a minor, who commits a grave breach of duty flowing from this task, which results in the endangerment of the minor's bodily, mental or moral development, shall be punishable with imprisonment of from one to five years. According to the Commentary to the Criminal Code, a breach of duty is considered 'grave' if the offender neglected his or her duty to such an extent that not even the minimum requirements of society were met. “77. In its third report, ECRI urged the Hungarian authorities urgently to take further steps to end the over-representation of Roma children in special schools [and] recommended that measures be taken to facilitate the integration of Roma children then in special schools into the mainstream school system. 78. ... According to information provided by the authorities, 2100 children who had been classified as having mental disabilities were reassessed by independent medical experts. 82. ECRI notes that the efforts made to date to combat the disproportionate representation of Roma children in special schools for children with mental disabilities, though they have had some positive effects, cannot be said to have had a major impact in practice so far. It stresses that, in parallel to assisting wrongly diagnosed children already in the special school system to return to the mainstream system, putting an end to this form of segregation also implies ensuring that children are not wrongly streamed into special schools.”