Horvath et al. v. Hungary

[2013]ECHR 11146/11
Download Judgment: English
Country: Hungary
Year: 2013
Court: European Court of Human Rights
Tags: Freedom from Discrimination, Mental health, Right to Development, Right to education

The case was the result of an application filed by, Mr.Horváth and Mr. Kiss, Hungarian nationals of Roma origin against the respondent, Republic of Hungary, under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedom (hereinafter ‘Convention’) alleging a violation of Article 2 Protocol no. 1 read in conjunction with Article14 of the Convention on the ground of discrimination in the enjoyment of their Right to Education.

The applicants were placed in a remedial school based on the recommendations of expert panels that diagnosed them with “mild mental disabilit[ies]”, of which the origin was declared unknown. The definition of ‘mental disability’ in Hungary included even educational challenges, dyslexia, and behavioral problems. However, the 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.

Over the course of several years, both applicants were reassessed and told that they still required special education. Yet, the applicants excelled academically. One of the applicants even won numerous academic and athletic competitions. The parents of the applicants were not involved in the diagnostic assessments and were not informed about their right to appeal against the decisions of the expert panels.

Independent experts found that neither of the applicants was mentally disabled, and concluded that they could both be educated in schools with normal curriculum. They noted that the diagnostic methods used to test children should be reviewed as Roma children could perform better in tests not designed for the ethnic majority.

The applicants filed claims for damages with the Regional Court, requesting that the court “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 77(3) of Act no. LXXIX of 1993 on Public Education (PEA)”. The Regional Court found that the aggregate of the experts, the Remedial School and Country Counseling, 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 2 respondents other than the expert panel went in appeal against this judgment in the Court of Appeal, which held that there was no discrimination against the applicants, as there wasn’t any nexus between the ethnic origin of the applicants and their placement into remedial schools and they were educated as per their mental capabilities. Against this, the applicants went in appeal to the Supreme Court. The Supreme Court reversed the Court of Appeal’s decision in part, holding that while the school and city council’s conduct had not violated the applicants’ right to equal treatment, the applicants’ may seek to have a violation of their human rights established before the European Court of Human Rights. Finally, the applicants made an application before the ECHR, arguing that the previous judgment has not fully and effectively remedied the violation of their rights, etc.

The application before ECHR by the applicants was contested by the government on several grounds. The first ground was that the applicants could no longer claim to be victims of a violation of their rights within the meaning of Article 34 of the Convention. The reason given by them was that the Regional Court had found the applicants’ right to equal treatment and education had been violated by the Expert Panel and the compensation granted to them had remedied their violation. The second ground was with respect to the assessment capabilities. The applicants have not exhausted the domestic remedies under Article 35 § 1 of the Convention and the failure to abide by the timeline of 6 months as under the same article. The Court found these objections interrelated and examined it together.

The ECHR declared that the complaint concerning the alleged unsuitability of the test battery applied in the applicants’ case inadmissible and the remainder of the application admissible. It held that the improper shunting of Roma children into special schools amounts to indirect discrimination, which violated their right under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention. It found that the applicants met their burden of establishing a prima facie case of indirect discrimination with their use of statistics that show that remedial treatment is applied much more often in the case of Roma children than for others. The Court explained that the burden was thus shifted to the government to prove that the difference in treatment was not discriminatory. The Court further found that had the government failed to provide a reasonable explanation. It held that in the instant case, adequate safeguards were not put into place to account for the special needs of the applicants as a disadvantaged class. It further held that the respondent State is to pay the applicants, jointly, within three months from the date on which the judgment becomes final. The payment was to be made in accordance with Article 44 § 2 of the Convention of amount EUR 4,500 (four thousand five hundred euros). The amount had to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants, in respect of costs and expenses.

“Racial discrimination is a particularly insidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment.” (Para. 101).

“[T]he Court reiterates that the word “respect” in Article 2 of Protocol No. 1 means more than “acknowledge” or “take into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State.” (Para. 103).

“In the context of the right to education of members of groups which suffered past discrimination in education with continuing effects, structural deficiencies call for the implementation of positive measures in order, inter alia, to assist the applicants with any difficulties they encountered in following the school curriculum. These obligations are particularly stringent where there is an actual history of direct discrimination. Therefore, some additional steps are needed in order to address these problems, such as active and structured involvement on the part of the relevant social services.” (Para. 104).

“A general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable on the basis of an ethnic criterion, may be considered discriminatory notwithstanding that it is not specifically aimed at that group, unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate.” (Para. 105).

“When it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence.” (Para. 107).

“Where an applicant alleging indirect discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden of proof shifts to the respondent State. The latter must show that the difference in treatment is not discriminatory.” (Para. 108).

Section 77(3) of Act no. LXXIX of 1993 on Public Education states that “[i]f a child or student suffers damages in connection with his or her placement in kindergarten, student's legal relationship, membership in a residence hall, practical training, the kindergarten, school, residence hall or the organizer of practical training is totally liable regardless to culpability. As regards compensation, the stipulations of the Civil Code are to be applied with the difference that the school or the organizer of practical training shall be exempt from their liability only if they may prove that the damage was the result of an unavoidable cause outside their scope of influence. No damages have to be paid if the damage has been caused by the unpreventable behavior of the person suffering the damage.” Section 9 (indirect discrimination) of Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities states that “[p]rovisions that are not considered direct negative discrimination and apparently comply with the principle of equal treatment but put any persons or groups having characteristics defined in Article 8 at a considerably larger disadvantage compared with other persons or groups in a similar situation are considered indirect discrimination.” Article 2 of Protocol No. 1 to the European Convention on Human Rights states that “[n]o person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” Article 14 of the Convention provides that “[t]he enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 41 of the Convention provides that “[i]f the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”