Infringement procedures against Czech Republic, Slovakia, Hungary for segregating Romani children
How long does it take to develop according to the best potential in the context of Romani children in Central and Eastern Europe?
Vivien Brassói
The image is just an illustration. (Segregated class in Ukraine.
Mundi Romani – The World Through Roma Eyes, 2008.)
I Introduction
During my primary school years in my hometown, for a brief period, I participated in an integrated experimental cross-cultural class. It was in these formative years that I experienced first-hand the benefits of integrated education and it became clear to me that equal access to education is one of the most important factors of integration and that I would like to work on this issue.
Eliminating segregated education is a legitimate demand which is derived from basic human rights, from the philosophical principles of the multicultural state, from the general political requirement and objective to ensure equal opportunity in society, from the goals of minority and education policy, and from the legislative environment resulting from the latter two.
Research results confirm that segregated education and separation based on school performance or ethnic origin negatively affect students’ development and strengthen social exclusion. [1] It causes damages to society, it decreases citizens’ sense of belonging together by reinforcing stereotypes and thus downgrading personal experience and opportunity of new acquaintances. These consequences reduce the chance of launching and maintaining public dialogue and for upholding the necessary level of solidarity to preserve a multicultural society. [2]
Although all members of society are victims of segregated education, those most affected by it are the people who directly experience discrimination and its consequences. For example, by a lack of proper education, labor market opportunities are limited for Roma people, and this directly leads to and perpetuates a vicious circle of poverty. [3]
After the formal closure of the Decade of Roma Inclusion, the integration of Roma in the domain of education remains one of the most challenging issues in the EU agenda, and the school systems still perpetuate the gap between the non-Romani and Romani students. It is clear that efficient and effective policies are needed to close the gap.
Cases related to segregated education clearly show that in Central and Eastern Europe a lot of Romani children are still waiting for the recognition of their substantive equality as they do not have the same access to education as their non-Romani peers. Even the landmark case of D.H. and Others v. the Czech Republic [4] at the European Court of Human Rights was not enough of a warning for European states to end discrimination against Romani students. 17 years ago, in 1999 18 children and their families from the Ostrava region, in the northeast of the Czech Republic, filed a complaint to the European Court of Human Rights to challenge the Czech educational system as most of the Romani children were systematically sent to special schools for children with learning difficulties. They claimed that their placement to these special schools was based on their ethnic origin.
The significance of the case is that the European Court of Human Rights has concluded for the first time that placing Romani children in schools for mentally disabled children based on culturally biased enrolment tests amounts to racial discrimination. This pattern of discrimination has violated the European Convention on Human Rights and the Court highlighted that the lack of equal access to education for Romani children is a persistent problem not only in the Czech Republic, but across Europe.
Later on, the European Union as a supranational promoter of human rights and equality has also started to pay attention to the matter of segregated education, since it has become a pressing problem and since the Member States have yet to rectify it. Launching infringement procedures [5] against certain countries is one of the responses of the European Union to the improper enforcement of the EU anti-discrimination law regarding the protection of the fundamental human rights of Romani people.
After similar procedures were launched against the Czech Republic and Slovakia in the past two years, the domino effect of infringement procedures launched by the European Commission has reached Hungary as a Member State responsible for violating the Racial Equality Directive. [6]
What factors have led to the infringement procedures in these countries and what has changed since the segregation of Romani children became an issue in the EU agenda? After a myriad of actions to eliminate discrimination in education, how much more time is needed to liberate the suppressed potential of Romani children in Central and Eastern Europe?
II Countries
1) Czech Republic
At the time when the D.H. and Others v. the Czech Republic case was brought to the European Court of Human Rights, Romani students were 27 times more likely to be placed in schools for mentally disabled children than their non-Romani peers. [7]
In 2014, despite the fact that less than 3% of the Czech population is Roma [8], 6 times more Romani children were placed in so-called practical schools [9], around 40% of Romani children factually have studied in segregated schools with reduced educational curricula and programme. [10] The Roma Inclusion Index 2015, published by the Decade of Roma Inclusion Secretariat Foundation, states that in the Czech Republic “In all the aspects of education the situation of Roma has improved and the gap between Roma and the total population has decreased […]. However, Czech schools remain highly segregated (both in mainstream and special education).” [11]
Almost a decade after the significant and unprecedented D.H. and Others v. the Czech Republic case [12], for the Romani children who still receive sub-standard and discriminatory education in the Czech Republic, the Court’s decision is an abstract, barely tangible manifestation of equality and human dignity. Although the D.H. case originated from the idea of inclusiveness, the real implementation of new laws and policies faced with political unwillingness, which has made the elimination of the practice of discrimination in education only slightly possible. In their late recollections, the children who won the case in 2007 – in the meantime they have become adults and have children of their own – also give voice to the fear that their children will share their fate, end up in inadequate, second-tier education. [13]
However, there has been a local initiative and the community has started to organize itself with the help of Romani community organizers and the NGO Life Together (Vzajemne souziti) in Ostrava, the city where the D.H. case originated from. The community mobilization helped the Romani families to understand the mechanisms of segregation, children were prepared for the entrance tests and parents were prepared to challenge the discriminatory decisions of mainstream schools. Most of the children whose families were involved in this effort had been enrolled in mainstream education. The campaign has grown and around 500 Roma are involved, but there is still a lot of work to do, not to mention that without political will and structural changes in public education, this effort will remain a drop in the ocean. [14]
The longstanding failures of the government to enforce and to effectively implement new laws and policies to eliminate segregated education resulted in an infringement procedure against the Czech Republic launched by the European Commission in September 2014 for discrimination of Romani children in education, in violation of the Racial Equality Directive. [15]
The European Commission has expressed its resentment that almost seven years after the landmark decision of D.H. and Others v. Czech Republic, the Czech Republic continues to be in breach with the EU anti-discrimination law and still maintains the socially and politically embedded structures of discrimination against Romani children. De facto there are no effective tools and mechanisms of implementation and enforcement introduced to tackle the forms of discrimination in education at state level.
In February 2015, in response to the above, the parliament amended the Schools Act and announced, as a new Action Plan, a set of tools and measures to further the issue of integrated education and to provide equal access to quality education for Romani children. The implementation of the reform package – which involves the following measures: “strengthened monitoring of the work of the psychological assessment centers by the Czech School Inspectorate; the introduction of mandatory attendance of the last grade of kindergarten; and the abolition of the educational program for pupils with mild mental disabilities with a view to their being integrated into mainstream education” – will come into force in September 2016. [16]
2) Slovakia
According to a research conducted by the European Roma Right Center in partnership with the Slovak Roma Press Agency (SRPA) in 2003, out of 211 Romani students enrolled in school in Svinia in eastern Slovakia, only 4 have attended regular classes in the elementary school, while the rest of the Romani students attended special classes. [17] Later on in 2012, a United Nations Development Programme survey concluded that around 43% of Romani children in mainstream schools were enrolled in segregated classes. [18] Moreover, a very recent report on school education in the Slovak Republic by the OECD of February 2016 highlighted that “[…] there are also concerns about strong social selectivity and inequities in the education system, including misplacement of some students in special schools.” [19]
Sadly, this is an ongoing problem in many places in the eastern part of the country and discrimination of Romani children in education is still a persistent issue. International and national human rights bodies and NGOs have been urging the Slovakian government for years to enforce the right to access to education without discrimination for Romani children. Consequently, in 2010 it has been admitted by the government that the discrimination of Romani children in education is a pressing issue and promises on ending segregation were made by the government. However, state authorities have taken little action to eliminate discrimination.
Later on, in 2012, the Regional Court in Prešov, eastern Slovakia, concluded that the practice of maintaining separate classes for Romani Children at an elementary school was unlawful and violated the requirements of the anti-discrimination legislation and was also a violation of human dignity. [20]
This ruling should have been a strong sign to the Slovakian authorities, but it has not changed in general the attitude, as in most of the cases Romani children still end up in special schools and classes for children with mild mental disabilities or they are placed in ethnically segregated mainstream schools and classes. [21] Moreover, the so-called container schools just have worsened the situation as these schools are directly placed by the Romani settlements. The result of this it that Romani children are cut off from society, as they barely go outside from the settlements where they live. [22]
That is why, after the Czech Republic, the European Commission initiated an infringement procedure against Slovakia as well for violating EU Anti-Discrimination Law, breaching the prohibition of discrimination. [23]
Since the announcement of the infringement procedure, the country began changing the School Act, with the Slovak Parliament adopting an amendment to the Act with the aim to eliminate and reduce the segregation of Romani children in June 2015. However, the European Roma Rights Centre and the Košice-based Center for Civil and Human Rights (Poradňa pre občianske a ľudsképráva) have pointed out in their jointly submitted report to the United Nations Committee on the Rights of the Child that while the “amendment prioritizes integration in mainstream schools and provides financial incentives for schools educating pupils from disadvantaged backgrounds, it does not contain any provisions for eliminating ethnic discrimination against.” [24]
Additionally, the European Commission stated in its country report on Slovakia in 2016 that Roma students usually attend special schools with limited curricula and experience discrimination in education. The report also mentioned that “the Roma inclusion index points to placement of more than half of Roma children in special and segregated schools or classes”. [25]
3) Hungary
Despite the successive introduction of soft and hard tools of education policies from 2002 to 2010, supposedly dedicated to the causes of equal opportunity and combating segregation, the Hungarian public education system became one of the most selective among OECD countries. [26] Similarly to regional peers, the lack of equal access to quality mainstream education still remains a crucial issue for Romani children in Hungary. [27]
Despite the legislative environment containing several anti-discriminatory measures and generally conforming to international standards, the question arises: if the entire legislative system was penetrated by the ban of discrimination, and the measures of education policy also aimed to decrease the level of segregation, what are the reasons of failure? Why could sociologist Gábor Havas declare in a 2009 interview for the journal Beszélő that “Whatever has been carried out is only the decoration of the ghetto!” [28]
Of course, the implementation of laws is affected by other social norms and some extra-legal factors, which could have an influence on the process and may have impeded the implementation of legal rules (for example white-flight).
In the recent years Hungary has taken backward steps in increasing the chances of Romani children to participate in inclusive mainstream education, despite all the critique and warnings of international and national human rights bodies and NGOs or the judgment of the European Court of Human Rights in 2013.In the latter case, the court concluded that the tests used for the Romani applicants’ placement had been outdated and culturally biased and putting the applicants in “special” schools amounted to the violation of right to education in conjunction with the prohibition of discrimination. [29]
Also, the Chance for Children Foundation’s [30] strategic litigation efforts and winning case at the European Court of Human Rights were not enough to change the political environment, where integrated education is not a priority. Moreover, it seems that the Hungarian government is willing to maintain the status quo and the government is taking steps to entrench segregation. For example, in 2014 it amended the Act on Public Education to allow for church-maintained schools and for schools which are serving national minorities to have segregated classes. [31]
Hungary has not taken positive steps to challenge the misdiagnosis and disproportionate placement of Romani children in special schools, to provide disaggregated data or to implement an inclusive education policy. Since the control of education has become centralized in 2013, the Hungarian government has not taken actions to eliminate the segregation of Romani children. [32]
As a consequence of “benevolent segregation” [33], the European Commission has finally initiated an infringement procedure against Hungary due to the segregation of Romani children in education. [34]
The reaction of the Hungarian government on the infringement procedure was cynical as János Lázár, the Minister heading the Prime Minister’s Office said it is not absolutely clear what the European Commission means by the warning as the Hungarian state does not keep records of any child’s origin. He said that “I have no idea how the European Commission knows which child is Roma and which child is not.” [35]
As the infringement procedure was launched by the European Commission just recently, it is too early to say anything about its progress. However, it is a warning sign that the Hungarian government is not keen to take positive steps to support desegregation and ensure that Roma children can equally enjoy access to quality education; instead, it explains that the infringement procedure is a revenge from Brussels because Hungary has a different view on issues than the European Commission.
III Conclusion – Expectations
The lack of access to quality education for Romani children has been an ongoing issue for decades in Central and Eastern Europe. The real needs of Romani students were made invisible for years, but thanks to the international and national human rights bodies and NGOs, it become obvious that it is not accidental that most of the Romani children are enrolled in schools for students with mild mental disabilities and in segregated schools and classes, but it derives from the deeply embedded racism in the practice of authorities, institutions and society.
Infringement procedures represent an important step. However, if during the procedure the Member States fail to conform with EU law, the European Commission can bring the case to the European Court of Justice, whose judgment is binding. However, neither the case of the Czech Republic nor that of Slovakia is in that phase. Moreover, the commission has just extended the deadline until September for Hungary to submit its observations. [36] Therefore, it is early to say anything at this stage about the outcomes of the procedures.
Sometimes winning cases on domestic level does not make an instant change as the domestic courts do not think that they have the authority to give direct orders to public institutions. The domestic courts conclude the violation of human rights of the Romani children, but they do not provide guidelines for the schools how to tackle segregation.
Strategic litigation is an important tool as it directly focuses on individual cases in order to bring change in the law, practice or public awareness through bringing systematically selected cases to the courts. Therefore, it would be more than important that once there is a judgment from a court which concludes that there was a violation of the prohibition of discrimination in a segregated education related case, the courts should specify how and by when they expect from the public authorities to eliminate segregation. At the same time, international procedures in front of international human right bodies have a strong role as well, as they can draw the attention of the public to these issues and can shape the public opinion. For example, the judgments of the European Court of Human Rights can have a positive effect on the countries to change policies and to adopt legal reforms so that national legislations meet international human right standards. [37]
Real change also strongly relies on political will and goes hand in hand with changing the perceptions of society on Romani people. The segregation of Romani children is an example of the deeply rooted antigypsyism in Europe. There is a great importance in sharing and promoting the vision of equality and to reach the change in attitudes and social practices.
I know from personal experience that inclusive education can make a real change as education is a real asset to break the vicious circle of poverty and hopelessness. And I do believe that there is an enormous need to develop inclusive education policies based on the real needs of Romani children. With longstanding efforts these policies can be officially recognized and, most importantly, equality and human dignity should be an unquestionable demand as Julius Mika, one of the D.H. case applicants said:
“I want parents to speak up and say that our children are capable of being educated and deserve the chance to be educated. People should not be so quick to judge the Roma. We are all born on the same earth and breathe the same air. Roma children deserve the same chance at an education.” [38]
References
[1] Gabor Kertesi, Gabor Kezdi, On the Test Score Gap between Roma and Non-Roma students in Hungary and its potential causes. Institute of Economics, Center for Economic and Regional Studies Hungarian Academy of Sciences, Department of Human Resources, Corvinus University of Budapest (2015), accessed July 7, 2016. http://www.econ.core.hu/file/download/bwp/bwp1401.pdf and Decade of Roma Inclusion Secretariat, Roma Inclusion Index (2015), accessed July 7, 2016. http://www.romadecade.org/cms/upload/file/9810_file1_roma-inclusion-index-2015-s.pdf
[2] Herby I am using the notion of multiculturalism in Bhikhu Parekh’s perspective as his theory promotes the dialogue between the different cultural and ethnic groups. See also: Bhikhu Parekh: What is multiculturalism?, accessed July 16, 2016. http://www.india-seminar.com/1999/484/484%20parekh.htm
[3] Kenneth B. Clark, Isidor Chein, and Stuart W. Cook, The Effects of Segregation and the Consequences of Desegregation, accessed July 7, 2016. http://www.columbia.edu/cu/psychology/courses/3615/Readings/the_effects_of_segregation.pdf
Gábor Kertesi, Gábor Kézdi, School Choice, and Educational Policies in 100 Hungarian Towns, accessed July 7, 2016. http://www.romaeducationfund.hu/sites/default/files/publications/school_segregationschool_choice_and_educational_policies_-_final_2013.pdf
[4] D.H. and Others v. the Czech Republic, accessed July 6, 2016. http://hudoc.echr.coe.int/eng?i=001-83256
[5] Based on EU treaties, the European Commission has a permission to take legal action against the Member States if they fail to enforce and implement the EU law. Infringement procedure, accessed July 7, 2016. http://ec.europa.eu/info/law-making-process/applying-eu-law/infringement-procedure_en
[6] Racial Equality Directive – Council Directive 2000/43/EC, accessed July 7, 2016. http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32000L0043
[7] D.H. and Others v. Czech Republic – Litigation, Open Society Foundations, accessed July 8, 2016. https://www.opensocietyfoundations.org/litigation/dh-and-others-v-czech-republic
[8] Czech Republic: Systematic discrimination against Romani children in schools, Amnesty International, accessed July 6, 2016. https://www.amnesty.org/en/latest/news/2015/04/czech-republic-systematic-discrimination-against-romani-children-in-schools/
[9] The special or so-called ‘practical schools’ are designed for students with mild mental disabilities where the curriculum is limited and the education is substandard.
[10] Roma Inclusion Index 2015, Decade of Roma Inclusion Secretariat Foundation, accessed July 9, 2016. http://www.romadecade.org/cms/upload/file/9810_file1_roma-inclusion-index-2015-s.pdf
[11] Ibid
[12] D.H. and Others v the Czech Republic, accessed July 6, 2016. http://hudoc.echr.coe.int/eng?i=001-83256
[13] Failing Another Generation – The Travesty of Roma Education in the Czech Republic, Open Society Foundations, accessed July 7, 2016. https://www.opensocietyfoundations.org/sites/default/files/failing-another-generation-20120601_0.pdf
[14] How Roma Families are Taking Action against Czech School Discrimination, Open Society Foundations, accessed July 7, 2016. https://www.opensocietyfoundations.org/voices/how-roma-families-are-taking-action-against-czech-school-discrimination
[15] ERRC Hopes that EU’s Proceedings against the Czech Republic Sends a Strong Signal to all Member States that Discrimination will not be Tolerated, European Roma Rights Centre, accessed July 7, 2016. http://www.errc.org/article/errc-hopes-that-eus-proceedings-against-the-czech-republic-sends-a-strong-signal-to-all-member-states-that-discrimination-will-not-be-tolerated/4326
[16] Must try harder: Ethnic discrimination of Romani Children in Czech schools, Amnesty International, accessed July 7, 2016. https://www.amnesty.org/en/documents/eur71/1353/2015/en
[17] Segregated Education for Romani Children in Slovakia, European Roma Rights Centre, accessed July 11, 2016. http://www.errc.org/article/segregated-education-for-romani-children-in-slovakia/1093
[18] Slovak authorities in breach of obligations to Romani school children, Amnesty International, accessed July 11, 2016. https://www.amnesty.org/en/latest/news/2013/09/slovak-authorities-breach-obligations-romani-school-children/
[19] OECD Reviews of School Resources: Slovak Republic 2015, accessed July 11, 2016. http://www.oecd-ilibrary.org/education/oecd-reviews-of-school-resources-slovak-republic-2015/school-education-in-the-slovak-republic_9789264247567-5-en
[20] Slovak court rules segregation of Roma in schools unlawful, Amnesty International, accessed July 11, 2016. https://www.amnesty.org/en/latest/news/2012/10/slovak-court-rules-segregation-roma-schools-unlawful/
[21] Unfulfilled promises: Failing to end segregation of Roma pupils in Slovakia, Amnesty International, accessed July 11, 2016. https://www.amnesty.org/en/documents/EUR72/001/2013/en/
[22] Slovakia’s ‘container schools’ worsen segregation of Roma children from society, Amnesty International, accessed July 11, 2016. https://www.amnesty.org/en/latest/news/2015/03/slovakia-segretation-of-roma-schoolchildren-worsens/
[23] Commission Takes Tougher Stance on Member States Discriminating Roma, European Roma Rights Centre, accessed July 11, 2016. http://www.errc.org/article/commission-takes-tougher-stance-on-member-states-discriminating-roma/4359
[24] Written Comments of the European Roma Rights Centre and Center for Civil and Human Rights Concerning Slovakia – For Consideration by the Committee on the Rights of the Child for the consideration at its 72nd Session (17 May – 3 June 2016), European Roma Rights Centre, accessed July 11, 2016. http://www.errc.org/cms/upload/file/slovakia-crc-submission-april-2016.pdf
[25] Country Report Slovakia 2016, European Commission, accessed July 11, 2016.http://ec.europa.eu/europe2020/pdf/csr2016/cr2016_slovakia_en.pdf
[26] Regarding to the reports of the Programme for International Student Assessment (PISA)
[27] The Roma Inclusion Index shows that 20 % of Roma children receive education in segregated schools, both in towns with several schools and remote settlements. Country Report Hungary 2016, European Commission, accessed July 12, 2016. http://ec.europa.eu/europe2020/pdf/csr2016/cr2016_hungary_en.pdf
[28] Ami történt, az a gettócsinosítgatása. Havas Gáborral Révész Sándor és Zolnay János beszélgetett. (What happened was the decoration of the ghetto. Sándor Révész and János Zolnay in conversation with Gábor Havas.) Beszélő 2009 April, Vol. 14, No. 4. accessed July 12, 2016. http://beszelo.c3.hu/cikkek/%E2%80%9Eami-tortent-az-a-getto-csinositgatasa%E2%80%9D
[29] Horváth and Kiss v. Hungary, accessed July 8, 2016. http://hudoc.echr.coe.int/eng?i=001-116124
[30] The Budapest-based NGO Chance for Children Foundation was established in 2004 and its main goal is perusing public authorities through courts to combat segregation of Romani Children. In the last years the cased of the Foundation were successful against the segregators. See http://www.cfcf.hu/en
[31] Statements and interventions by Zoltán Balog, Minister of Human Capacities, have shown that authorities have no intention to promote integrated schooling. Zoltán Balog, who is in Charge of Roma Integration, Fights for Segregation, accesses July 8, 2016. http://hungarianspectrum.org/2014/11/26/zoltan-balog-who-is-in-charge-of-roma-integration-fights-for-segregation/
[32] Segregation in Hungary: The Long Road to Infringement, European Roma Rights Centre, accessed July 8, 2016. http://www.errc.org/blog/segregation-in-hungary-the-long-road-to-infringement/106
[33] This term was used by Zoltán Balog, Minister of Human Capacities, who intervened in the segregation case of Nyíregyháza in support of the segregating practice of the Greek Catholic Church, the school-maintainer. The Chance for Children Foundation won the case in all stages against the church, except the last one, when the Curia (the Supreme Court of Hungary) overturned the earlier judgments and concluded that segregation of Roma children is legal in church-maintained schools.
[34] European Commission – Fact Sheet – May infringements’ package: key decisions – Brussels, 26 May 2016, accessed July 11, 2016. http://europa.eu/rapid/press-release_MEMO-16-1823_en.htm
[35] No one can be sent back to Hungary, Press Conference of the Hungarian Government, May 26, 2016, accessed July 11, 2016. http://www.kormany.hu/en/prime-minister-s-office/news/no-one-can-be-sent-back-to-hungary
[36] Press Conference – European Roma Rights Centre – 28 July, 2016
[37] Az elkülönítés nem sérti az alapjogokat Magyarországon [The segregation is not infringing the fundamental human rights in Hungary], Roma Sajtóközpont – Roma Press Centre, accessed July 12, 2016. http://romasajtokozpont.hu/az-elkulonites-nem-serti-az-alapjogokat-magyarorszagon/
[38] Failing Another Generation – The Travesty of Roma Education in the Czech Republic, Open Society Foundations, accessed July 7, 2016. https://www.opensocietyfoundations.org/sites/default/files/failing-another-generation-20120601_0.pdf