The European Court of Human Rights (ECtHR) has ruled that Slovakia discriminated against a Romani pupil who was placed in a special class for children with mild intellectual disabilities. In the case of SALAY v. SLOVAKIA, where the applicant was represented by the ERRC, the court ruled that the pupil received an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special education.
“We welcome this judgment where for the first time the Strasbourg court confirmed what we already knew – there has been systemic segregation of Romani pupils in special education in Slovakia”, said ERRC’s legal consultant Michal Zálešák, who has worked on the case since the beginning of domestic proceedings, “On the other hand, we find it unfortunate the applicant had to wait more than ten years to achieve justice. We sincerely hope that the Slovak authorities learn the lesson from this judgment and secure quality inclusive education for all.”
Facts of the case
The applicant who grew up in a Roma community of several hundred people in Plavecký Štvrtok, alleged both direct and indirect discrimination on the grounds of his Roma origin with regard to, inter alia, his right to education.
He contended that his enrolment in Year Zero and later in special classes had been arbitrary and had effectively prejudiced his entire academic trajectory. This was demonstrated by the fact that it had not been possible to transfer him to a mainstream class in the academic year 2011/12, even though he had been retested in June 2011 and the relevant results had indicated that this was a valid option. However, it was decided “from a psychological perspective, it was most appropriate for the applicant to continue his education in a special class with an extended curriculum, and this would enable him to complete lower secondary education.”
The applicant maintained that the tests had been culturally, socially and linguistically biased. His parents had not given informed consent for his enrolment in special classes, and he had not been retested regularly. The equipment and facilities used in such classes and the curriculum followed was inferior to that used in mainstream classes.
Furthermore, the applicant argued that despite the evidence he presented supporting the argument that he had been discriminated, the national courts did not shift the burden of proof as required by law in proceedings regarding cases of alleged discrimination.
“Persistent, widespread and systematic overrepresentation of Roma pupils in special education”
The Court found that the applicant’s argument is supported by findings made by Council of Europe and UN bodies as well as the Public Defender of Rights of Slovakia, which noted that special education in Slovakia constituted an inferior standard of education and that there was persistent, widespread and systematic overrepresentation of Roma pupils in special education. The fact that it is well-known that Roma children are overrepresented among those diagnosed with an intellectual disability has also recently been recognised by a Slovak court.
The Court noted that the inappropriate placement of Roma children in special schools had a long history across Europe, and held that in circumstances involving recognised bias in previous placement procedures, the State had a positive obligation to avoid the perpetuation of past discrimination or discriminative practices disguised as allegedly neutral practices. It was accordingly incumbent on the State to demonstrate that the tests in question and the application of those tests were capable of fairly and objectively determining a person’s academic ability and intellectual capacity.
In short, the Court found that the applicant received an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special education; that it has been established that the relevant legislation as applied in practice at the material time had a disproportionately prejudicial effect on the Roma community, thus “the State, in a situation where there was a prima facie case of discrimination, failed to prove that it provided the guarantees needed to avoid the misdiagnosis and inappropriate placement of Roma pupils. The Court therefore considers that the applicant must have suffered discriminatory treatment.”
It was a matter of regret that while the Court found in the past that the system of ‘special education for children with special educational needs might be justified as serving a legitimate aim’, it missed this opportunity to establish case law that would be more inclusive of disability rights, and more supportive of inclusive education beyond ethnic discrimination. In response to the Court’s ruling, ERRC Legal Director, Senada Sali commented:
“This judgment is a powerful reminder that systemic discrimination is not always obvious—it is often buried in policies that appear neutral but have devastatingly unequal effects. The recognition of indirect discrimination is significant, yet the ruling also underscores the difficulty of dismantling deeply ingrained biases in education systems. Romani children deserve more than just acknowledgment of their plight; they need structural changes that ensure equal educational opportunities in practice, not just in principle.”
The Court held that there has been a violation of Article 14 of the Convention, taken in conjunction with Article 2 of Protocol No. 1 on the right to education. The applicant was awarded €3000 in non-pecuniary damages. As Michal Zálešák commented “In terms of just satisfaction for depriving a young person of a life’s worth of educational opportunities, this is a paltry amount of compensation.”
This press release is also available in Slovak.
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