Placement of Roma gypsy children in “special” schools
II. THE LAW AND THE RELEVANT DOMESTIC AND INTERNATIONAL PRACTICE A. The law and domestic practice 1. Domestic law 31. According to Article 7 § 1 of Presidential Decree No. 201/1998, “All pupils who have attained the legal age of schooling must be registered in the first class of primary school. Registrations take place from 1 June to 15 June of the preceding school year.” 32. Directive Φ4/350/Γ1/1028/22.8.1995 of the Ministry of National Education and Religious Affairs underlines the need “ for cooperation between Romani families, heads, and school councils so that Romani children living in camps are registered in nursery and primary schools ( ... ). The heads [of schools] must not only encourage Romani children to enrol in primary schools, but also, identify Romani children in their district and ensure their registration and attendance at classes ( ... )”. In addition, Directive Φ4/127/Γ1/694/1.9.1999 of the Minister of National Education and Religious Affairs and Article 7 § 8 of Presidential Decree No. 201/1998 require the competent authorities to facilitate the access of Romani children to public education. 33. The relevant articles of Legislative Decree No. 18/1989 on the “Codification of the provisions of the laws on the Council of the State” provide: Article 45 “Offending acts” “ 1. An action for annulment for abuse for excess of power or violation of the law is admissible only against legally binding acts of the administrative authorities and the legal entities of public law who are not susceptible to appeal before any other jurisdiction. (...) 4. In cases where the law requires an authority to settle a particular question by enacting an enforceable act subject to the provisions of paragraph 1, the action for annulment is admissible even against the failure of that authority to enact such an act. The authority is presumed to refuse to enact the act either when the special period of time fixed by the law expires, or after the expiry of a period of three months from the filing of the request of the administration, who is expected to issue an acknowledgment of receipt ( ... ) indicating the day of the said deposit. The action for annulment exercised before the expiry of the aforementioned periods is inadmissible. An action for annulment validly lodged against an implied refusal [of the administration] is also an action against the negative act that may be subsequently adopted by the administration; however, this act may also be attacked separately.” Article 52 “ ( ... ) 2. A committee established for the needs of the cause by the president of the Council of State or the competent section of the Council of State and composed of said president or his deputy, the reporter of the case and a councillor of State may, at the request of the author of the solution of annulment, suspend the execution of the contested act by a decision briefly reasoned and adopted in the Council Chamber ( ... ).” 2. The Hellenic League of Human Rights (LHDH) and the Centre for Research on Minority Groups (KEMO) 34. The LHDH, established in 1953, is the oldest non-governmental organisation in Greece. It is a member of the International Federation of Human Rights. KEMO is a non-profit organisation established in 1996. The purpose of its activity is scientific research on minority groups and languages in Greece. 35. LHDH and KEMO ’ s 2007 annual report on the state of racism and xenophobia in Greece observes a clear improvement in schooling conditions for people belonging to the Muslim and Roma minorities compared to those of the nineties. However, the report notes that the registration of Romani children in school continues to be a source of tension, intolerance, and violent reactions. This sometimes requires the placement of Romani children in schools specially created for the Roma, despite the strong commitment of the administration to avoid the segregation of minorities in the school environment. The report notes that the most serious incidents of intolerance concern the registration of Romani children in primary education. 3. The Institute of Education for People of Greek Origin and Intercultural Education 36. By a letter dated 2 February 2004, the Institute of Education for People of Greek Origin and Intercultural Education had informed the representative of the Greek Helsinki Monitor that eighteen schools attended only by “Gypsy children” had been operation in Greece during the 2002-2003 school year. B. The sources of the Council of Europe 1. The Committee of Ministers The Recommendation no. R (2000) 4 of the Committee of Ministers to member-states on the education of Roma children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696 th meeting of the Ministers ’ Deputies) 37. The terms of this recommendation are as follows: « The Committee of Ministers, in accordance with Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to achieve a closer union among its members, and that this aim may be pursued in particular by adopting joint action in the field of education; Recognising the urgent need to lay new foundations for future educational strategies for Roma / Gypsies in Europe, in particular because of the high rate of illiteracy or semi-illiteracy in this community, the extent of school failure, the low proportion of young people completing primary school and the persistence of factors such as school absenteeism; Noting that the problems faced by Roma / Gypsies in the field of education are largely due to the long-standing educational policies that have led either to the assimilation or segregation of Romani / Gypsy children in school on the grounds that they suffered from a "socio-cultural handicap"; Considering that the disadvantaged position of Romani / Gypsies in European societies can only be remedied if equality of opportunity in the field of education is guaranteed to Romani / Gypsy children; Considering that the education of Romani / Gypsy children should be a priority of national policies for Roma / Gypsies; Bearing in mind that policies to address the problems faced by Roma / Gypsies in the field of education must be comprehensive and based on the recognition that the issue of schooling of Romani / Gypsy children is linked to a set of factors and preconditions, including economic, social and cultural aspects and the fight against racism and discrimination; Bearing in mind that educational policies for Romani / Gypsy children should be accompanied by an active policy on adult and vocational education; (...) Recommends the governments of member states: to respect, in the implementation of their education policy, the principles set out in the appendix to this Recommendation; to bring this Recommendation to the attention of the competent public authorities in their respective countries, through the appropriate national channels." 38. The relevant parts of the Annex to Recommendation No. R (2000) 4 read as follows: “Guiding Principles for an Education Policy for Romani /Gypsy Children in Europe” THE LAW I. ON THE ADMISSIBILITY OF THE APPLICATION 49. On principle, the Government plead the inadmissibility of the complaint for failure to exhaust domestic remedies. In particular, it claims that in virtue of Article 45 § 4 of Legislative Decree No. 18/1989, the applicants had the opportunity to appeal to the Administrative Court of Appeal against the for an action for annulment against the omission of the administration to register their children. In addition, the Government plead that the applicants could, on the basis of Article 52 § 2 cited above, add to their action for annulment a request for the suspension of the alleged omission of the administration. 50. The Court considers that said exception is closely linked to the substance of the applicants ’ grievance on the grounds of Article 13 of the Convention and decides to attach it to the merits. 51. The Court considers furthermore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it faces no other ground of admissibility. It should therefore be declared admissible. II. ON THE ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 52. The applicants complain that no remedy in domestic law was available to them through which they could have raised their grievances drawn from Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1. They invoke Article 13 of the Convention, which reads as follows: “Anyone whose rights and freedoms recognised in the ( ... ) Convention have been violated, has the right to an effective remedy before a national authority, even if the violation was committed by persons acting in their official duties. ” 53. The Government holds that Article 13 of the Convention has not been violated. Referring to its argument elaborated in the context of its objection to the admissibility of the application, it asserts that the applicants could have brought an action for annulment before the administrative courts under Articles 45 and 52 of Legislative Decree No. 18/1989, against the tacit refusal of the administration to register their children at the Aspropyrgos primary school. 54. The applicants claim that they had no remedy available to provide them with adequate redress for the violation in question. They claim to have made use of the legal means for the prompt registration of their children at the primary school since they have addressed, through the intermediary of the Greek Helsinki Monitor, to the competent minister and Ombudsman of the Republic. They consider that a referral to the administrative courts wold not have ensured the prompt schooling of their children for the 2004-2005 school year, given the delay by these courts in dealing with the appeals before them. Lastly, the applicants note that their grievance is mainly aimed at the racist segregation of their children in schools. They argue on this point that no appeal before the administrative courts could have been effective given that, according to domestic law, the segregation of Romani children in the school setting is acceptable. On this point, they refer to the letter from the Institute of Education of People of Greek Origin and Intercultural Education dated 2 February 2004, according to which eighteen schools attended only by “gypsy children” had functioned in Greek territory during the 2002-2003 school year (see paragraph 36 above). 55. The Court recalls that Article 13 of the Convention guarantees the existence in domestic law of a remedy for grievances that may be considered “defensible” under the Convention. Such an appeal must enable the competent national authority to know the content of the complaint based on the Convention and to offer the appropriate remedy, even if the contracting States enjoy a certain margin of judgment as to the manner of complying with the obligations of this provision. 56. In addition, the Court notes that the rule of exhaustion of domestic remedies, stated in Article 35 § 1 of the Convention, is based on the assumption, incorporated in Article 13, with which it has close affinities, that the domestic order provides an effective remedy, in practice as well as in law, for the alleged violation ( Kudła v. Poland [GC], No. 30210/96, § 152, ECHR 2000-XI; Hassan and Tchaouch v. Bulgaria [GC], no. 30985/96, §§ 96-98, ECHR 2000 ‑ XI ). The Court recalls that in virtue of the rule of exhaustion of domestic remedies the applicant must, before referring to the Court, have given to the responsible State, using judicial resources that may be considered effective and sufficient by national legislation, the ability to remedy the alleged violations by domestic means ( see, inter alia, Fressoz and Roire v. France [GC], No. 29183/95, § 37, ECHR 1999 ‑ I ). 57. Article 35 § 1 of the Convention prescribes the exhaustion only of remedies that are available, adequate, and relate to incriminating violations. They must exist to a sufficient degree of certainty not only in theory but also in practice, without which they lack the necessary effectiveness and accessibility; it is incumbent upon the respondent State to show that these requirements are met (see, inter alia, Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 87, § 38). Lastly, someone who has made an appeal that is of a nature to directly remedy – and not indirectly – the situation at hand is not obligated to exhaust other potentially open but improbably effective measures ( Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports 1996-IV, § 33). 57. In this case, the Court notes that the Government has not provided any case law to demonstrate that the use of the remedies mentioned above could have led to the annulment of the alleged omission by the administration to register the children in school. However, it is for the State which alleges non-exhaustion of domestic remedies to establish the existence of effective and sufficient remedies ( Soto Sanchez v. Spain, no. 66990/01, § 34, 25 November 2003). In light of this, it is for the Court to dismiss the Government ’ s objection based on non-exhaustion of domestic remedies. In addition, in view of the fact that the Government has not mentioned any other remedy that they applicants could have exercised in order to obtain the redress of the alleged violation of Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1, the Court concludes that the State has failed to fulfil its obligations under Article 13 of the Convention. 58. Accordingly, there has been a violation of that provision. III. ON THE ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 AND ARTICLE 14 OF THE CONVENTION 59. The applicants complain that the non- enrolment of their Romani children for the 2004-2005 school year is due to inertia and to the competent authorities ’ omissions. In addition, they see discrimination based on race and ethnicity in the fact that their children have had to attend special preparatory classes, held in separate rooms in the main building of the primary school of Aspropyrgos, where the other children from a comparable situation are welcomed. They invoke, in this respect, Articles 2 of Protocol No. 1 and 14 of the Convention, which read as follows: Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in this 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 2 of Protocol No. 1. “No one can be denied the right to education. The State, in the exercise of its functions in the field of education and teaching, shall respect the right of parents to provide such education and instruction in accordance with their religious and philosophical convictions. ” A. The parties ’ submissions 60. The Government affirms that the educational authorities of Aspropyrgos have done everything possible to register the Romani children living in the Psari camp in primary school. It notes that in November and December 2004, a delegation of Aspropyrgos ’ primary school teachers visited the Roma living in the Psari camp to convince them to enrol their children in school. It adds that when the applicants went to the director of the 10 th primary school of Aspropyrgos, they did not have the required documents for enrolment. Finally, it notes that for the 2004-2005 school year and previous years, Romani children had been enrolled at the 10 th primary school of Aspropyrgos. 61. As for the creation of special preparatory classes, the Government points out that they did not pursue segregative purposes in any way. He asserts that these classes had been only intended for students of an age older than that of primary school enrolment. According to the Government, the objective of these classes was mainly to teach the students reading and writing so that they could be subsequently integrated into ordinary classes. These classes initially took place in the afternoon at the premises of the 10 th primary school of Aspropyrgos, because of a lack of space in the morning, before being transferred to prefabricated rooms installed near the Romani camp in Psari. The Government submitted an undated and unsigned document, titled “ Report on the scholarly life and educational activity in the school complex for Romani children in Gorytsa Park ”. According to this report, during their enrolment and their schooling in preparatory classes, the students concerned had been subjected to assessment tests which had shown that 90% of them had weaknesses in writing and reading the Greek language. In addition, the Government notes that the applicants had been informed of the creation of these preparatory classes and that they had given their consent. Finally, it notes that it has been planned that for the 2007-2008 school year, the preparatory classes will be held in a new building intended to be built in the school complex of the 10 th primary school of Aspropyrgos to accommodate a new primary school. 62. The applicants refer to the Ministry of National Education ’ s directives in virtue of which the administration is required to facilitate the enrolment of Romani children in school. They maintain that according to domestic law every person who fails to enrol their child at school incurs criminal responsibility. They allege that the failure to bring criminal proceedings against them in the present case only confirms the indifference of the educational authorities regarding the registration of Romani children in primary school. 63. Regarding the schooling of Romani children in separate preparatory classes, the applicants refer in particular to the incidents created by the parents ’ association of Aspropyrgos primary school students at the beginning of the 2005-2006 school year. These incidents are based on racism, which explains the segregative attitudes of the competent authorities. As for the steps taken by the school authorities during the summer of 2005 to register Romani students in primary school, the applicants claim that these were inappropriate: the Roma would not have had electrical facilities in their camp to listen to the radio, they would be illiterate, and finally, the postal service would not serve their camp. 64. The applicants allege the contradictory nature of the Government ’ s arguments that the constitution of preparatory classes for Romani students was dictated by objective reasons. In particular, they state that if the morning classes never took place, it is so that Romani students do not go to the other class. They consider that it would have been possible for their children to attend morning classes, given the limited number of students (from eight to twelve) who attended afternoon class in the main building of the school. In addition, the applicants hold that the special school did not actually work to prepare the Romani students to integrate, since none of these students subsequently joined ordinary classes. The applicants note on this point that today none of the Romani students attend an ordinary or preparatory class; on the other hand, the preparatory classes are abolished, and Romani students have been transferred to the 12 th primary school of Aspropyrgos, a newly created establishment which is not yet operational. B. The Findings of the Court 1. General Principles a ) On Article 2 of Protocol No. 1 65. The Court recalls that Article 2 of Protocol 1 implies the right of the State to establish obligatory schooling, whether in public schools or through quality private lessons, and that the verification and application of educational standards is an integral part of this right ( Family H v. United Kingdom, No. 10233/83, Commission Decision of 6 March 1984, Decisions and Reports (DR) 37, page 109). In addition, the Court more recently underlined the importance of children ’ s schooling in primary schools, not only to acquire knowledge but also to integrate children into society. The Court has also recognised the usefulness of the system of compulsory schooling to avoid the emergence of a society of two entities with different philosophical convictions ( Konrad and others v. Germany (dec.), no. 35504/030, 11 September 2006). In light of this, the Court underlines the particular importance, in systems where school attendance in public or private schools is obligatory, of school enrolment for all school-aged children, which is all the more important for children belonging to minority groups. b ) On Article 14 of the Convention 66. The Court reiterates that discrimination consists of a difference in treatment, without objective and reasonable justification, between people in comparable situations ( Willis v. United Kingdom, no. 36042/97, § 48, UCHR 2002-IV). Contracting States enjoy a certain margin of discretion in determining whether and to what extent differences between otherwise similar situations justify differences in treatment ( Gaygusuz v. Austria, judgment of 16 September 1996, reports 1996-IV, § 42), but it is for the Court to make a final ruling on compliance with the requirements of the Convention. 67. Article 14 does not forbid a member State from treating groups differently to correct “factual inequalities” between them; in fact, in certain circumstances, it is the absence of differential treatment to correct an inequality which may, in the absence of an objective and reasonable justification, result in a violation of the provision in question ( Thlimmenos v. Greece [GC], no. 34369/97, § 44, UCHR 2000-IV; D.H. and others v. Czech Republic [GC], no. 57325/00, § 175, ECHR 2007- ... ). The Court also accepts that a policy or general measure may be considered discriminatory if it has disproportionate adverse effects on a group of people, even if it did not specifically concern this group ( Hugh Jordan v. United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. Netherlands (dec.), no. 58461/00, 6 January 2005), and that discrimination potentially contrary to the Convention could result from a factual situation ( Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006- ... ). 68. Discrimination based especially on one ’ s ethnicity constitutes a form of racial discrimination. This is a particularly condemnable discrimination which, in view of its dangerous consequences, requires special vigilance and a vigorous response on the part of the authorities. Therefore, they have an obligation to employ all the means at their disposal to fight racism, thus reinforcing democracy ’ s conceptions of society, perceiving diversity not as a threat but as a wealth ( Natchova and others v. Bulgaria [GC], nos. 4377/98, § 145, ECHR 2005- ...; Timichev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005- ... ). The Court has also considered that, in democratic society based on principles of pluralism and respect for different cultures, no difference in treatment based exclusively or in part on one ’ s ethnic origin could be objectively justified ( Timichev, cited above, § 58; D.H. and Others v. Czech Republic, cited above, § 176). 69. In that which concerns the burden of the proof of the matter, the Court has judged that, when an applicant has established a difference in treatment, it is incumbent upon the Government to demonstrate that this difference in treatment was justified (see, for example, Chassagnou and others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999 ‑ III; Timichev, cited above, § 57 ). 70. As for factors which may constitute such a prima facie case and hence to shift the burden of proof to the respondent State, the Court noted ( Natchova and others, cited above, § 147) that, in the course of the proceedings before it, there was no procedural obstacle to the admissibility of evidence nor any predefined formula applicable to their assessment. In effect, the Court adopts the conclusions that, in its opinion, are supported by an independent evaluation of all of the evidence, including the inferences which it can draw from the facts and observations of the parties. In accordance with the settled case law of the Court, the evidence may thus result from a body of indications or presumptions which are not refuted, sufficiently serious, precise, and consistent. Moreover, the degree of conviction necessary to reach a particular conclusion and, in this respect, the distribution of the burden of proof, are inextricably linked to the specificity of the facts, the nature of the formulated claim and to conventional law in question ( D.H. and Others v. Czech Republic, cited above, § 178). 71. Finally, it is evident from the Court ’ s case-law that the vulnerability of Roma/Gypsies implies the need to pay special attention to their needs and their specific way of life, both in the regulatory framework under consideration and in the decision-making process of this particular case ( Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001-I; Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004). The Court notes that, because of their vicissitudes and their perpetual uprooting, the Roma constitute a disadvantage and vulnerable minority of a particular character (see also the general observations of Parliamentary Assembly Recommendation no. 1203 (1993) on Gypsies in Europe, paragraph 39 above, and point 4 of its Recommendation No. 1557 (2002) on the legal situation of Roma in Europe, paragraph 41 above). They therefore need special protection. As evidenced by the activities of many Greek and European bodies, including the recommendations of the Council of Europe bodies (paragraphs 34-48 above), this protection extends equally to the area of education. The present affair thus deserves special attention, especially since at the time of the Court ’ s referral the persons concerned were minors for whom the right to education was of the utmost importance ( D.H. and Others v. the Czech Republic, cited above, § 182). 72. In addition, the Court has already observed that an international consensus is emerging among contracting States of the Council of Europe to recognise the particular needs of minorities and the obligation to protect their security, their identity and their way of life, not only to protect the interests of minorities themselves but also to preserve cultural diversity which benefits all of society as a whole ( Chapman v. the United Kingdom, cited above, §§ 93-94). 2. Application of the aforementioned principles to the present case 73. The Court observes at the outset that it finds itself confronted with divergent versions of certain facts, notably on the character of the visit to the premises of the primary schools of Aspropyrgos on 21 September 2004 by the parents of Romani children. The applicants allege that the purpose of this visit was the registration of their children, while the Government asserts that the applicants wished only to obtain information about registration for their minor children. In addition, the parties disagree, in particular, on the visit of a delegation of teachers to the Psari camp in November and December 2004, on the criteria for selecting children for preparatory schools, and on the current situation regarding the schooling of Romani students. 74. The Court recalls that it remains free to make its own assessment in light of the body of facts at its disposal ( Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 24, § 32). It notes also that even if several facts remain uncertain, there is sufficient evidence from the documents submitted by the parties to assess the case. 75. In this case, the applicants hold that their children suffered, without objective and reasonable justification, a less favourable treatment than that accorded to non-Roma in a comparable situation, and that this situation constitutes discrimination contrary to the Convention. The Court will therefore first consider whether or not the facts of the case give rise to the presumption of discrimination. If so, it will then investigate whether the alleged discrimination is based on a reasonable and objective basis. a) The existence in the present case of evidence justifying a presumption of discrimination 76. The Court notes at the outset that the parties confirm that the applicants ’ children missed the 2004-2005 school year and that preparatory classes were created within the 10 th primary school of Aspropyrgos, but that, on the other hand, they disagree as to the competent authorities ’ intentions relating to the acts or omissions attributed to them. The applicants allege that the authorities continued to segregate Romani children, while the Government asserts that their purpose was to facilitate the integration of Romani children into ordinary classes at the Aspropyrgos primary school. 77. The Court has already recognised the difficulties which the applicants may have in proving the existence of discriminatory treatment ( Natchova and others, cited above §§ 147 and 157 ). To guarantee to the concerned persons an effective protection of their rights, less stringent rules of evidence are required in the case of an allegation of indirect discrimination. 78. If a refutable presumption of discrimination with respect to the effect of a measure or practice is thus established by the applicants alleging an act of discrimination, it is then incumbent upon the defendant State to refute this presumption by demonstrating that the difference in question is not discriminatory (see, mutatis mutandis, Natchova and others, cited above, § 157). In fact, with regard in particular to the specific nature of the facts and the nature of allegations made in this type of case ( ibid. , § 147), it would be in practice extremely difficult for the interested parties to prove indirect discrimination without such a reversal of the burden of proof. 79. In the present case, the Court notes that the creation of the three preparatory classes in question was only foreseen in 2005, when the local authorities found themselves confronted with the question of the schooling of Romani children residing in the Psari camp. In particular, it is clear from the document No. Φ20.3/747 submitted by the 1 st Office of Primary Education of West Attica on 5 June 2007 that the Departmental Director of Education in the region of Attica convened an informal meeting of the competent authorities of the municipality of Aspropyrgos to deal with the additional enrolment of Romani students. The Government has given no example, prior to the facts of the case, of the creation of special classes within primary schools of Aspropyrgos, even though other children of Romani origin were enrolled in the past. 80. In addition, the Court notes that the parties agree on the composition of the preparatory classes: in fact, these were attended exclusively by students of Romani origin. The Court does not lose sign in this respect that the creation of preparatory classes and, a fortiori, of schools designed exclusively for the schooling of Romani children was at least tolerated by domestic law: by a letter on 2 February 2004, the Institute of Education of Greek People and of Intercultural Education informed the representative of the Greek Helsinki Monitor that twenty-eight schools attended exclusively by “Gypsy children” had been operational on Greek territory during the 2002-2003 school year (paragraph 36 above). 81. The Court considers it also necessary to refer to the historical context of the case, and in particular to the racist incidents which took place in front of the 10 th primary school of Aspropyrgos in September and October 2005. It acknowledges that these incidents cannot be attributed to state authorities, since they were organised, as regrettable as it may be, by private individuals, namely some of the parents of non- Romani students of the 10 th primary school of Aspropyrgos. The Court can only note on this point that police forces were dispatched several times to primary schools of Aspropyrgos in order to maintain order and to avoid the commission of illegal acts against the Romani students. Nonetheless, this does not preclude the assumption that the aforementioned incidents affected the concerned authorities ’ subsequent decision to place the Romani student in pre-fabricated rooms constituting an annex to the 10 th Aspropyrgos primary school. 82. In these circumstances, the evidence presented by the applicants and those in the file of the case can be considered sufficiently reliable and revealing to give rise to a strong presumption of discrimination. It is thus necessary to reverse the burden of proof and to place it upon the Government, which must demonstrate that this difference in treatment was the result of objective factors not linked to the ethnicity of the people concerned. b ) On the existence of an objective and reasonable justification 83. The Court reiterates that a distinction is discriminatory if it “lacks objective and reasonable justification”, that is, if it does not pursue a “legitimate aim ” or if there is no “reasonable relationship of proportionality” between the means employed and the end pursued (see, among many others, Larkos v. Cyprus [GC], no. 29515/95, § 29 ECHR 1999-I; Stec and others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-VI). In case of a difference of treatment based on race, colour, or ethnicity, the concept of objective and reasonable justification must be interpreted in a manner as strict as possible ( D.H. and others v. the Czech Republic, cited above, § 196). 84. The Court notes first of all that the applicants complain of the school authorities ’ refusal to enrol their students for the 2004-2005 school year. It observes that it does not appear from the evidence from the file that the applicants had endured an explicit refusal on the part of the authorities of the 10 th primary school of Aspropyrgos to enrol their children. It refers notably to the report of the Ombudsman of the Republic stating that there was not, on the part of the competent services, a general and unjustified refusal to enrol the Romani children in the primary schools. It further notes that if the parties agree on the fact that on 21 September 2004 the applicants went to see the director of the 10 th primary school of Aspropyrgos, they disagree on the question of the aim of this meeting: the applicants allege that the point of their visit was the registration of their children, while the Government asserts that the applicants wished simply to obtain information on this subject. 85. The Court considers that, even to admit that the applicants had simply sought information on the conditions of registering their children in primary school, it is indisputable that they explicitly manifested to the competent school authority their wish to school their children. Given the vulnerability of the Roma, which implies the necessity to pay special attention to their needs (paragraphs 42 and 72 above), and the fact that Article 14 requires in certain circumstances differential treatment to correct inequality the competent authorities should have recognised the particularity of the case and facilitated the registration of children of Romani origin, even in the case where some of the required administrative documents were missing. The Court notes on this point that Greek law recognises the particularity of the situation of Roma, by facilitating the procedure of enrolling their children in school (see paragraph 32 above). Moreover, as confirmed by the Ombudsman of the Republic, domestic legislation provides for the possibility of enrolling students in primary school on a simple declaration of those who exercise parental authority, provided that they provide birth certificates in due course. 86. This weighty obligation on the school authorities of Aspropyrgos was all the more obvious as they were aware of the problem of schooling children living in the Psari camp and the necessity to proceed with their enrolment in primary school: the interview of the applicants with the director of the 10 th primary school of Aspropyrgos which took place on 21 September 2004 had been preceded, in August 2004, by a press release from the Minister of Education which emphasised the importance of integrating Romani children in the process of national education, and, on 10 September 2004, by a visit by the Secretary of the Department of Greek and Intercultural Education, accompanied by two representatives from the Greek Helsinki Monitor, to the Romani camps in Psari with the aim of ensuring the enrolment of all the Romani children of schooling age. The Government does not dispute on this point that the Greek Helsinki Monitor had subsequently informed the competent authorities of the Minister of Education in Religious Affairs, without them acting on this case. 87. With regard to special classes operating within the 10 th primary school of Aspropyrgos, the Court notes first of all a certain inconsistency with regard to the criteria which, according to the Government, are supposed to govern the selection of students to be assigned to preparatory classes. According to the letter from the 1 st Office of Primary Education of West Attica dated 5 June 2007, facing the additional enrolment of students of Romani origin for the 2005-2006 school year, it was age that was used to determine the students who had to attend special classes. However, in its letter of 17 March 2006, the Directorate of Primary Education of West Attica informed the Ministry of National Education and Religious Affairs that the new students of Romani origin had been welcomed into an Annex of the 10 th Aspropyrgos Primary School due to a lack of space in the main building of the school. Finally, in its letter of 20 June 2006, the 3 rd district of the Educational Council for Primary Education of Attica declared explicitly to have used the criteria of Romani origin of the interested “ with a view to assure their adaptation to the school environment, taking into account the deficiencies they suffer and diverse other reasons rendering their integration into ordinary classes impossible. ” (paragraph 29 above). 88. The Court deduces from that which precedes this that the competent authorities have not relied on a single and clear criterion from which to choose the students to be assigned to preparatory classes. It notes in particular that in their letters from 17 March and 20 June 2006 the school authorities invoke exclusively criteria directly referring to the ethnic origin of the persons concerned. Moreover, it finds that even the application of the criteria of age mentioned in the letter of 5 June 2007 would not be likely to remove the discriminatory character reserved for the children in question. In fact, the Government makes no mention in its observation of adequate tests to which the children concerned would have been subjected in order to assess their aptitudes or possible learning difficulties (see D.H. and others v. the Czech Republic, cited above, §§ 199-201). 89. The Government has submitted an unsigned, undated document pertaining to school life and educational activity in preparatory classes according to which the students of preparatory classes had been subjected to evaluation tests which had demonstrated that 90% among them showed weaknesses in writing and reading the Greek language. The Court notes, however, that the students concerned had been submitted to these tests after just having been distributed in preparatory classes, namely “ at the time of their registration and their schooling”. Moreover, the Government gives no details as to the content of these tests and does not rely on any expert opinion to prove their adequacy (see on this point, D.H. and others v. the Czech Republic, cited above, § 200). 90. In addition, the Court notes that the stated purpose of the preparatory classes was that the concerned students would be brought up the standard level in order to integrate into ordinary classes. However, the Government does not cite a single example of a student who, after having been placed in a preparatory class – there had been more than fifty – would, after the end of two school years, integrated into ordinary classes of the 10 th primary school of Aspropyrgos. In addition, there are no assessment tests to which the Romani students should have been periodically submitted to enable schools to assess, on the basis of objective data and not on approximative evaluations, their aptitude to integrate into ordinary classes. 91. The Court considers it necessary to emphasise the importance of establishing an adequate system of evaluating the aptitudes of children presenting shortcomings in learning in view of bringing them up to par. When the students concerned belong to an ethnic minority, as in the case in question, such a system is necessary, before all, to guarantee their potential placement in special classes on the base of non-discriminatory criteria. In this case, and given the racist incidents provoked by parents of non- Romani students of Aspropyrgos, the introduction of such a system would also have given rise to the applicants ’ and their children ’ s feeling that their placement in preparatory classes was not inspired by segregative motivations. While admitting that it is not for it to decide on this question of a psycho-pedagogical nature, the Court considers that this would have particularly contributed to the unhindered integration of students of Romani origin not only in ordinary classes but into local society. 92. With regard to the parental consent granted by the applicants, the Court notes that the Government implies that given a difference of treatment having been established in this case, such consent would imply the acceptance of this difference, even if it discriminated, that is, the renunciation to the right to not be subject to discrimination. However, the Court ’ s case-law requires that the renunciation of a right guaranteed by the Convention – to the extent that it is lawful – is unequivocally established that it must be made knowingly, that is, on the basis of informed consent ( Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, pp. 16-17, §§ 37-38), and without constraint ( Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, § 51). 93. In the circumstances of the case, the Court is not convinced that the applicants, as members of a disadvantaged community often without education, were able to assess all the aspects of the situation and the consequences of their consent. It seems, in addition, clear that at least some of the applicants found themselves on this occasion confronted by a dilemma. As the first applicant indicated in his testimony under oath of 31 May 2007 before the Elsefina Peace Court, he had to choose between the schooling of his children in ordinary classes, with the risk that their integrity would be placed in peril by “furious” non- Romani people, or their education in the “ghetto school.” 94. Recalling the fundamental importance of the prohibition of racial discrimination ( Natchova and others, cited above, § 145; Timichev, precited, § 56), the Court considers that one cannot admit the possibility of renouncing the right to not be the object of such discrimination. In fact, such a renunciation would run up against a significant public interest (see D.H. and others v. Czech Republic, cited above, § 204). 95. In certain conditions and in view of the considerations listed above, the Court is not convinced that the contested difference in treatment between Romani children and other non- Romani children is based on an objective and reasonable justification and there exists a reasonable relationship of proportionality between the means employed and the aim in sight. In particular, it considers that, despite the authorities ’ willingness to provide schooling for the Romani children, the arrangements for registering the children in question at school and their assignment in special preparatory classes – hosted in an annex to the main building of the school – has definitively resulted in discrimination. 96. Accordingly, there has been in this case a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 in respect of each of the applicants. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 97. According to Article 41 of the Convention, "If 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 .” A. Damages 98. The applicants claim a lump sum of 180, 000 euros (EUR) for non-pecuniary damage. 99. The Government claims that the finding of a violation would in itself constitute sufficient just satisfaction. In addition, it considers that the sum awarded to the applicants should not exceed EUR 10,000. 100. The Court considers that the applicants have suffered non-pecuniary damage, in particular because of the humiliation and the frustration caused to them by the discrimination suffered by their children. This moral injury is not sufficiently compensated by the findings of violation of the convention. However, the Court considers the amount sought by the applicants to be excessive. Making its judgment on an equitable basis, it considers that it is appropriate to award each of them EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that sum. B. Costs and expenses 101. The applicants also demand, in support of the invoice, EUR 2,000 for the costs and expenses incurred before the domestic courts and the Court. 102. The Government asserts that there is not a causal link between the costs and expenses incurred in the domestic proceedings and the alleged violations of the Convention. 103. According the Court ’ s case-law, an applicant can obtain reimbursement of their costs and expenses only in so far as their reality, their necessity, and the reasonableness of their rate are established. Taking into account the reasonableness of the amount claimed and the fact that an invoice was produced, the Court accepts this claim in its entirety and jointly awards the applicants EUR 2,000 as such, plus any amount that may be due as taxes on this amount. C. Default interest 104. The Court considers it appropriate to model the rate of default interest on the interest rate on the European Central Bank ’ s marginal lending facility plus three percentage points.
The Court noted that the Roma children were not suitably tested either initially, to see if they needed to go into the preparatory classes, or later, to see if they had progressed sufficiently to join the main school. It found a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2 (right to education) of Protocol No. 1 concerning both the enrolment procedure and the placement of the children in special classes. The Court also held that there had been a violation of Article 13 (right to an effective remedy) of the Convention, finding that the Greek Government had not adduced evidence of any effective remedy that the applicants could have used in order to secure redress for the alleged violation of Article 14 of the Convention taken together with Article 2 of Protocol No. 1.