Oršuš and others v. Croatia
Grand Chamber of the European Court of Human Rights
16 March 2010
Article 28: Education
Article 30: Children of minorities or indigenous populations
Other International Provisions:
European Convention for Human Rights (ECHR): Article 6 (Right to fair trial) and Article 14 (Prohibition of discrimination)
Croatian Constitution, Article 14: Equality before law
The complainants were 15 Croatian nationals of Roma descent, who had at times attended separate classes, comprised of only Roma pupils, in their respective primary schools. The curriculum taught in the Roma-only classes could be reduced by up to 30% in comparison to the regular curriculum. The proportion of Roma children in the classes for lower grades allegedly varied from 33% to 75%. In their application to the European Court of Human Rights (ECtHR), the complainants submitted that they were told that they had to leave school at the age of 15, presenting statistics showing that only 16% of Roma children aged 15 completed their primary education compared with 91% of the general primary school population, and that the dropout rate of Roma pupils was 84% which was 9.3 times higher than for the general population.
The complainants had brought an action in the municipal and constitutional courts of Croatia, complaining that the situation constituted racial discrimination in violation of their rights to education and freedom from inhuman and degrading treatment and had caused them emotional and psychological harm. Both the municipal and constitutional courts rejected the claims, favouring the argument that segregation was a lawful measure to deal with Roma children’s inadequate command of the Croatian language. The complainants then lodged the case with the ECtHR, alleging that they had been denied the right to education and had been discriminated against because of their race and origin, and that the length of the proceedings before the Croatian authorities had been excessive. The lower chamber of the ECtHR agreed with the Croatian government and ruled that the segregation was the result of ability rather than discrimination.
Issue and resolution:
Discrimination, Roma children, segregation in education. Whether there was a violation of Article 6 and Article 14 of the ECHR. The Court held that the five year period the Croatian authorities took to decide on the complainants’ case was excessive. The Court further held that the separation of Roma children was discriminatory because the means were disproportionate to the legitimate aim of ensuring that Roma children received special attention to improve their command of the Croatian language.
The complainants had the right under Article 6 of the ECHR to have their case heard within a “reasonable time”, with reasonableness to be assessed in light of the particular circumstances of the case. A period exceeding four years to decide on the complainants’ case, especially in view of what was at stake, namely the right of children to education, was found to be excessive.
With regards to the alleged discrimination, the Court stressed the fact that the complainants were children, for whom the right to education was of paramount importance. According to the Court’s well-established case-law, discrimination means treating persons in similar situations differently, without an objective and reasonable justification. However, Article 14 does not prohibit a State from treating groups differently in order to correct “factual inequalities”. States enjoy a margin of appreciation in assessing whether and to what extent different treatment is justified. A measure would be discriminatory unless it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate.
The Court noted that the complainants attended regular primary schools and that the Roma-only classes were in the same premises as other classes. The statistics presented also showed that it was not a general policy to automatically place Roma pupils in separate classes. However, even though segregation for the purpose of addressing the Roma children’s inadequate command of the Croatian language pursued the legitimate aim of adapting the education system to fit their specific needs, there was no evidence of proper assessment of language ability nor any process to measure improvement and move the Roma children to higher grade classes. As such, the Court, while recognising the efforts made by the Croatian authorities to ensure that Roma children receive schooling and attention, considered that there were no adequate safeguards in place capable of ensuring proportionality between the means used and the legitimate aim pursued. It followed that the placement of the complainants in Roma-only classes at times during their primary education had no objective and reasonable justification.
The judgment on discrimination was passed with a narrow majority of nine votes to eight. The eight dissenting judges issued a joint opinion which stated that while they agreed with the key principles laid out in the judgment, they did not agree with the application of the principles and the conclusion drawn.
The dissenting judges were satisfied that the alleged different treatment of the complainants was not based on their ethnic origin or other “suspect” grounds, but exclusively on their insufficient command of the Croatian language. In such circumstances a wide margin of appreciation is allowed to the Croatian authorities in employing methods of addressing the complainants’ learning difficulties. The dissenting judges considered that the placement of the complainants in Roma-only classes at times during their primary education had a legitimate aim pursued by acceptable means for a limited period, and that there existed an objective and reasonable justification.
he dissenting judges also stressed that the Grand Chamber was overruling a well-reasoned judgment by the Croatian Constitutional Court, as well as a unanimous judgment of the European Chambers, by a slim margin without substantiation on key principles.
Excerpts citing CRC and other relevant human rights instruments:
E. Convention on the Rights of the Child
95. The relevant parts of Articles 28 and 30 of this Convention provide as follows.
“1. States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; ... (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates...”
“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”
Human Rights Watch’s World Report 2016 published in January 2016 notes that Roma children continue to be de facto segregated in the education system in Croatia.
CRIN believes that this decision is consistent with the CRC. Article 2 requires that all Convention rights are guaranteed without discrimination as to ethnic origin, and that States must take measures to ensure that the child is protected from discrimination. Discrimination against Roma children in education is a widespread phenomenon, and language barriers should not be used as a pretext for further segregation and isolation. Instead, States should address the language needs of Romani and other minority children through non-discriminatory means, such as active engagement between school authorities, community leaders and parents, and free pre-school education programmes to enable Roma children to begin school on an equal footing with others.
Application No. 15766/03
Link to Full Judgment: