Education
II. RELEVANT DOMESTIC LAW A. The Constitution 61. Article 14 of the Constitution reads: “Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” B. The Constitutional Act on the Constitutional Court 62. The relevant parts of section 62 of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 read: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ... 2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies are exhausted only after the decision on these legal remedies has been given.” C. The Administrative Disputes Act 63. Section 67 of the Administrative Disputes Act ( Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/ 19 92 and 77/ 19 92) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials, specifically that an action can be brought if the following conditions are met: (a) an unlawful action has already taken place; (b) such action is the work of a government official/body/agency or another legal entity; (c) the action resulted in a violation of one or more of the plaintiff ’ s constitutional rights; and (d) the Croatian legal system does not provide for any other avenue of redress. D. The Primary Education Act 64. The relevant provisions of the Primary Education Act ( Zakon o osnovnom školstvu, Official Gazette nos. 59/1990, 26/1993, 27/1993, 29/1994, 7/1996, 59/2001, 114/2001 and 76/2005) read: Section 2 “The purpose of primary education is to enable a pupil to acquire knowledge, skills, views and habits necessary for life and work or further education. A school is obliged to ensure continuous development of each pupil as a spiritual, physical, moral, intellectual and social being in accordance with her or his abilities and preferences. The aims of primary education are: – to arouse and cultivate in pupils an interest and independence in learning and problem solving as well as creativity, moral consciousness, aesthetic tastes and criteria, self-esteem and responsibility towards the self and nature, social, economic and political awareness, tolerance and ability to cooperate, respect for human rights, achievements and aspirations; – to teach literacy, communication, calculation, scientific and technological principles, critical observation, rational argumentation, understanding of the life we live and understanding of the interdependence of people and nature, individuals and nations. The aims and tasks of primary education shall be realised according to the established teaching plans and programmes.” Section 3 “Primary education lasts at least eight years. Primary education is in principle mandatory for all children from six to fifteen years of age. ” V. RELEVANT UNITED NATIONS MATERIALS A. International Covenant on Civil and Political Rights 87. Article 26 of the Covenant provides: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” B. United Nations Human Rights Committee 88. In points 7 and 12 of its General Comment No. 18 of 10 November 1989 on non- discrimination, the Committee expressed the following opinion: “ 7. ... the Committee believes that the term ‘ discrimination ’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. ... 12. ... when legislation is adopted by a State Party, it must comply with the requirement of Article 26 that its content should not be discriminatory. ... ” 89. In point 11.7 of its Views dated 31 July 1995 on Communication no. 516/1992 concerning the Czech Republic, the Committee noted: “. .. the Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of Article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with Article 26. But an act which is not politically motivated may still contravene Article 26 if its effects are discriminatory.” C. International Convention on the Elimination of All Forms of Racial Discrimination 90. The relevant part of Article 1 of this Convention provides: “... the term ‘ racial discrimination ’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ...” D. Committee on the Elimination of Racial Discrimination 91. In its General Recommendation No. 14 of 22 March 1993 on the definition of discrimination, the Committee noted, inter alia : “ 1. ... A distinction is contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination] if it has either the purpose or the effect of impairing particular rights and freedoms. This is confirmed by the obligation placed upon States parties by Article 2 § 1 (c) to nullify any law or practice which has the effect of creating or perpetuating racial discrimination. ... 2. ... In seeking to determine whether an action has an effect contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination], [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.” 92. In its General Recommendation No. 19 of 18 August 1995 on racial segregation and apartheid, the Committee observed: “ 3. ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds. 4. The Committee therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities. ...” 93. In its General Recommendation No. 27 of 16 August 2000 on discrimination against Roma, the Committee made, inter alia, the following recommendation in the education sphere: “17. To support the inclusion in the school system of all children of Roma origin and to act to reduce drop-out rates, in particular among Roma girls, and, for these purposes, to cooperate actively with Roma parents, associations and local communities. 18. To prevent and avoid as much as possible the segregation of Roma students, while keeping open the possibility for bilingual or mother-tongue tuition; to this end, to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community, to recruit school personnel from among members of Roma communities and to promote intercultural education. 19. To consider adopting measures in favour of Roma children, in cooperation with their parents, in the field of education.” 94. In its concluding observations of 30 March 1998 following its examination of the report submitted by the Czech Republic, the Committee noted, inter alia : “13. The marginalisation of the Roma community in the field of education is noted with concern. Evidence that a disproportionately large number of Roma children are placed in special schools, leading to de facto racial segregation, and that they also have a considerably lower level of participation in secondary and higher education, raises doubts about whether Article 5 of the [International Convention on the Elimination of All Forms of Racial Discrimination] is being fully implemented.” E. Convention on the Rights of the Child 95. The relevant parts of Articles 28 and 30 of this Convention provide as follows. Article 28 “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. ... ” Article 30 “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.” F. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 96. The relevant part of Article 4 provides: “ 1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. ... ” G. United Nations Education, Scientific and Cultural Organization ( Unesco) 97. Articles 1 and 3 of the Convention against Discrimination in Education of 14 December 1960 provide in their relevant parts as follows. Article 1 “1. For the purposes of this Convention, the term ‘ discrimination ’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular: (a) Of depriving any person or group of persons of access to education of any type or at any level; (b) Of limiting any person or group of persons to education of an inferior standard; (c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or (d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man. ...” Article 3 “In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake: (a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education; (b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 98. The applicants complained about the length of the proceedings before the national courts. They relied on Article 6 § 1 of the Convention, which reads in its relevant parts as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. The Chamber judgment 99. In its judgment of 17 July 2008, the Chamber found that Article 6 was applicable to the present case under its civil head and that the length of the proceedings had been excessive. B. The parties ’ submissions to the Grand Chamber 1. Applicability of Article 6 § 1 100. The Government, relying on the Court ’ s judgment in Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports of Judgments and Decisions 1998 ‑ IV), disputed the applicability of Article 6 to the proceedings conducted before the national courts upon the applicants ’ civil action. 101. The applicants argued in favour of the applicability of Article 6. 2. Merits 102. The applicants complained that the length of the proceedings, and in particular those before the Constitutional Court, had exceeded the reasonable time requirement. 103. The Government contested that argument, stressing the special role of the Constitutional Court and the fact that it had to address complex constitutional issues in the applicants ’ case. C. The Court ’ s assessment 1. As to the Government ’ s preliminary objection 104. In its judgment in Emine Araç v. Turkey ( no. 9907/02, ECHR 2008), the Court explicitly recognised, for the first time, that the right of access to higher education is a right of a civil nature and, in so doing, it abandoned the case-law of the Commission ( see André Simpson v. the United Kingdom, no. 14688/89, Commission decision of 4 December 1989, Decisions and Reports 64, p. 188 ), which had concluded that Article 6 was inapplicable to proceedings concerning the laws on education (on the ground that the right not to be denied primary education fell within the domain of public law). The Court considers that the same reasoning applies a fortiori in the context of primary education ( argumentum a maiore ad minus ). 105. In addition, in the Kök v. Turkey judgment (no. 1855/02, § 36, 19 October 2006), the Court found that, where a State confers rights which can be enforced by means of a judicial remedy, these can, in principle, be regarded as civil rights within the meaning of Article 6 § 1 (see, along the same lines, Tinnelly & Sons Ltd and Others and McElduff and Others, cited above, § 61). 106. As to the present case, it seems clear that a “dispute” arose in respect of the applicants ’ initial and then continuing placement in Roma-only classes during their schooling in primary schools. The proceedings before the domestic courts concerned the applicants ’ allegations of infringement of their right not to be discriminated against in the sphere of education, their right to education and their right not to be subjected to inhuman and degrading treatment. The applicants raised their complaints before the regular civil courts and the Constitutional Court and their complaints were examined on the merits. 107. Furthermore, the applicants ’ right not to be discriminated against on the basis of race was clearly guaranteed under Article 14 § 1 of the Constitution and, as such, enforceable before the regular civil courts in the national legal system (see, mutatis mutandis, Tserkva Sela Sosulivka v. Ukraine, no. 37878/02, § 42, 28 February 2008, and Gülmez v. Turkey, no. 16330/02, § 29, 20 May 2008). In view of the above, the Court concludes that Article 6 § 1 is applicable in the instant case. 2. Merits 108. The Court reiterates that the reasonableness of the length of these proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court ’ s case-law, in particular the complexity of the case, the applicants ’ conduct and that of the competent authorities, and the importance of what was at stake for the applicants in the litigation (see Süßmann v. Germany, 16 September 1996, § 48, Reports 1996 ‑ IV, and Gast and Popp v. Germany, no. 29357/95, § 70, ECHR 2000 ‑ II ). In this connection, the Court notes that the proceedings commenced on 19 April 2002 and ended with the Constitutional Court ’ s decision of 7 February 2007. While the case was speedily decided by the trial and appellate court, where the proceedings lasted for some seven months, the same cannot be said of the length of the proceedings before the Constitutional Court, which lasted for four years, one month and eighteen days. 109. Although the Court accepts that the Constitutional Court ’ s role of guardian of the Constitution sometimes makes it particularly necessary for it to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms, the Court finds that a period exceeding four years to decide on the applicants ’ case and in particular in view of what was at stake, namely the right to education, appears excessive. 110. Accordingly, the Court considers that in the present case there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings before the Constitutional Court. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL No. 1 111. The applicants complained that they had been denied their right to education and discriminated against in this respect. They relied on Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1, which read as follows: Article 14 – Prohibition of discrimination “The 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 2 of Protocol No. 1 – Right to education “No 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.” A. The Chamber judgment 112. The Chamber found no violation of Article 2 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention. It held that the applicants had been assigned to Roma-only classes because they lacked sufficient command of the Croatian language and that this measure had been justified. B. The parties ’ submissions to the Grand Chamber 1. The applicants 113. As regards the nine applicants (the second to tenth applicants) who had attended Podturen Primary School, the applicants submitted that in the school year 2000/01, when they had all attended the second grade, a majority of them had been assigned to a Roma-only class. The following year, all nine of the applicants attending Podturen Primary School had been assigned to a Roma-only class with nineteen Roma pupils. At the same time there was only one other class in the third grade, consisting of nineteen non-Roma pupils. In the school year 2002/03 all nine applicants had been assigned together to a Roma-only class in the fourth grade. In the school year 2003/04 they had all been assigned to a mixed class only because there had not been enough Roma pupils to form a Roma-only class. 114. As regards the five applicants (the eleventh to fifteenth applicants) who attended Macinec Primary School, the applicants submitted that they had been assigned to a Roma-only class during their entire schooling. Most of the other Roma pupils had been assigned to Roma-only classes. In total, out of 153 Roma pupils in the first four grades, 137 had been assigned to Roma-only classes. In the fourth grade, out of 44 pupils, 21 were Roma, all assigned to a Roma-only class. The applicants argued that the Government had failed to present any consistent and rational explanation for forming a Roma-only class in the fourth year of schooling in Macinec Primary School since, in the applicants ’ view, by then all their language problems should have already been adequately remedied. The number of Roma-only classes in Croatia had increased from 27 in 2004 to 68 in 2008, 62 of which were in Međimurje County. 115. The applicants stressed, in particular, that the method used by the school authorities, allegedly to improve their language skills, had been inadequate. In their opinion the best method of integrating children with insufficient language proficiency would have been to place them in classes together with children who spoke the language of instruction because that, coupled with additional lessons in Croatian, would have been the easiest and fastest way for the applicants to learn Croatian. The applicants argued that it was critical to ensure that children who spoke a different language at home were included in groups that could provide good role models in terms of the majority language and created the best conditions for their language needs. They maintained that various research reports and expert bodies within the Council of Europe, the European Union and the United Nations recommended an integrative approach in the field of education of Roma children. 116. The applicants argued that there had been no specific programme in the above respect. They admitted, however, that the sixth, seventh, tenth and twelfth to fifteenth applicants had been provided with additional lessons in Croatian. They also argued that they had been provided with a substandard curriculum taught in Roma-only classes. 117. The applicants claimed that there had been no legal basis for assigning them to a Roma-only class. They argued that there had been no clear, accessible and foreseeable procedures regarding the assignment of pupils to special classes, either upon their enrolment or at subsequent stages in their education. In their view the tests employed as a part of the enrolment procedure were not designed to assess a child ’ s knowledge of the Croatian language but as an orientation point in determining the child ’ s psycho- physical status. 118. The applicants submitted that, apart from a general grading system, there had been no other specialised periodic assessment of their progress in acquiring an adequate command of the Croatian language. The grading scale was from one to five, and the lowest pass mark was two. They further argued that even when they had achieved a pass mark in the Croatian language they had not been transferred to a mixed class. 119. As a rule, their transfer to a mixed class had not been considered. On the contrary, the school authorities had refused to transfer them, claiming that the principle of homogeneity of a class was paramount. 120. The applicants claimed that there had been no specific measures in place for improving their poor school attendance and high drop-out rate, other than sanctions against pupils and parents. 121. The applicants submitted that there had been Roma assistants in the 1990s and that recently they had been reintroduced, but that both times this had been without a legal basis and without clear and objective criteria for hiring them that would have ensured their competence and positive results. 122. They further argued that they had not taken part in any extracurricular activities in an ethnically/racially mixed group organised by the school. They pointed to the lack of systematic and structured approach to the integration of Roma children into mainstream classes. Even if ethnically mixed extracurricular activities existed, they would be no substitute for complete classroom integration. 2. The Government 123. The Government firstly pointed out that the applicants had not been deprived of the right to attend school and receive education since they had all enrolled in primary school at the age of seven, like all children in Croatia, and had attended school until they reached the age of fifteen, after which schooling was no longer mandatory. The Government admitted that it was possible that the curriculum in Roma-only classes was reduced by up to 30% in relation to the regular, full curriculum. They argued that this was admissible under relevant domestic laws, and that such a possibility had not been reserved for Roma-only classes but was applied in respect of all primary school classes in Croatia, depending on the particular situation in a given class. Furthermore, the Roma-only classes were by no means “special” classes of any kind. They were ordinary classes in ordinary schools and were created only in schools where the proportion of Roma pupils was significant or where they represented a majority of pupils in a given generation, and then only in respect of those Roma pupils who also lacked adequate command of the Croatian language. In Podturen Primary School the number of Roma children in the lower grades varied from 33 % to 36%. In 2001 the total number of pupils had been 463, of whom 47 were Roma. There had been only one Roma-only class, with 17 pupils, while the remaining 33 Roma pupils had attended mixed classes. Since 2003 there had been no Roma-only classes in that school. In Macinec Primary School the number of Roma children in the lower grades varied from 57 % to 75%. Roma-only classes were formed in the lower grades and only exceptionally in the upper grades. All classes in the two final grades were mixed. In 2001 the total number of pupils had been 445, of whom 194 were Roma. There had been six Roma-only classes, with 142 pupils, while the remaining 52 Roma pupils had attended mixed classes. 124. The Government submitted that the applicants had been assigned to Roma-only classes on the basis of section 2 of the Primary Education Act and the Rules on the number of pupils in regular and multi- grade classes. Under section 2 of the Primary Education Act the purpose of primary education was to ensure the continuing development of each pupil as a spiritual, physical, moral, intellectual and social being, according to his or her capabilities and affinities. In the Government ’ s view this could only be achieved in a permanent group of pupils of approximately the same age and knowledge. The same legal basis and the same criteria had been applied in respect of all other pupils. The applicants had been submitted to the same tests as all other children enrolling primary school. The applicants had been assigned to Roma-only classes on the basis of their insufficient knowledge of the Croatian language in order to address their special needs and to ensure an equal approach, which was possible only where the majority of them had the same initial knowledge of the Croatian language and psycho-physical readiness to attend primary school. 125. All but the second and tenth applicants had been assigned to a Roma-only class upon their enrolment in primary school. The second and tenth applicants were initially enrolled in a mixed class. They failed the first grade with negative marks in, inter alia, the Croatian language. After that, they were assigned to a Roma-only class. 126. In respect of the applicants enrolled in Macinec Primary School, the Government submitted that the enrolment procedure included the psycho-physical appraisal of the children by a panel composed of a physician, a psychologist, a school counsellor ( pedagog ), a defectologist and a teacher, in the presence of at least one of the child ’ s parents. 127. In respect of the applicants enrolled in Podturen Primary School, the Government submitted that the records concerning the enrolment of the applicants who had attended that school could not be found owing to the passage of time. They did, however, submit a testimony of a teacher who had led a three-month pre-school programme for Roma children and who said that at the end of that programme a teacher would assess each child ’ s language level, after which the child would be placed in a mixed or Roma-only class accordingly. 128. The Government submitted school records showing that all the applicants, both in Podturen and Macinec Primary Schools, had been provided with additional lessons in the Croatian language. They had been able to participate in various extracurricular activities carried out in the Croatian language, some of which were particularly focused on the improvement of language skills (such as recitals and reading). Furthermore, in 2002 in Podturen Primary School and in 2003 in Macinec Primary School, Roma assistants were recruited to help children in Roma-only classes to improve their knowledge. 129. The Government submitted that the assessment of the applicants ’ progress had been a part of the regular procedure for the evaluation of pupils, as in all other schools in Croatia. In the lower grades, evaluation in all subjects was done by the class teacher. A final mark was given at the end of each school year on the basis of all marks given during the school year. The basic elements for determining a mark were: knowledge and understanding of the subject matter, oral and written expression, applying acquired knowledge in practice and creative use of it, development of skills, participation in classes and development of a pupil ’ s psycho - physical abilities and capacities. In particular, elements for assessing knowledge of the Croatian language included reading and writing skills, oral and written expression, vocabulary and grammar, reading of books, and homework. A mark combined a number of factors, among which the most important for pupils in the lower grades were motivation and personal development in respect of each subject. The marks were given according to the individual capacity of each child. Therefore, the good marks given to some of the applicants after they had failed a grade or repeatedly failed a grade did not necessarily mean that they had a good command of the Croatian language, but that they had made progress. 130. As to the individual circumstances of the applicants in the present case, the Government submitted that their progress had in fact been very slow. All of the applicants had failed several grades in succession. Sometimes it had taken them two or three years to complete one grade. As an example they explained that the twelfth applicant had had to repeat the first grade twice, after which he scored a three (good) in Croatian. However, in the first grade, pupils were taught basic reading and writing skills and a majority of them received high marks. Therefore a three in Croatian after twice repeating the first grade could not be seen as proof of an adequate knowledge of the Croatian language. It had then taken him another three years to complete the second grade. 131. Furthermore, there were several procedural safeguards. Each parent had the right to challenge a teacher ’ s assessment. A school headmaster was obliged to examine every complaint. Where the majority of parents at a school meeting agreed that a particular teacher was not objective in his or her assessment, the class teacher had to examine the complaint at a meeting of the school board. Where the school board found the complaint founded, the headmaster was obliged to take the necessary measures, as prescribed by law. Furthermore, each pupil had the right to complain about the marks awarded, and the right to ask for a special panel to assess his or her knowledge. As to the applicants in the present case, there had never been any complaints about the assessment of their knowledge or their placement in a Roma-only class. Likewise, their parents had never asked for the transfer of their children to a mixed class. 132. The Government submitted school records showing that a number of measures had been adopted. Firstly, the class teachers encouraged pupils to attend school. The schools held regular meetings of class teachers with parents, as well as individual parent-teacher meetings for pupils who had problems with school attendance, but the parents of the pupils concerned mostly ignored invitations to both types of meeting. The schools also employed Roma assistants who served, inter alia, as mediators between the schools and parents and would visit parents and explain the necessity and importance of education for their children. 133. The school authorities also regularly informed the applicants and their parents that the applicants could continue their education at the same school even after the age of 15. In addition, the applicants also had a possibility of attending evening classes, free of charge, in a nearby town in order to complete their primary education. Three applicants enrolled in the evening programme, but only one actually completed it. In respect of the fifth applicant, the school authorities had informed the competent social welfare centre of the attendance problem, so that appropriate steps could be taken. The teachers had been involved in resolving various problems encountered in respect of the applicants. When a class teacher of the tenth applicant had noticed that he had problems with his sight, the teacher had taken him to an ophthalmologist and made sure he obtained adequate glasses. 134. The Government submitted that all Roma children, regardless of their placement in a particular class, were integrated with other children during their schooling in numerous ways, for example by their active involvement in all extracurricular activities organised at schools (such as singing, dancing, handicraft and mixed activities), as well as their participation in all outdoor activities organised by schools (such as swimming lessons, excursions to towns, visits to various sites, monuments and institutions, collection of litter, ecological activities and various competitions), and participation with other pupils in the social activities organised at schools (such as Christmas and New Year ’ s celebrations, School Day celebrations, Sports Day and Bread Day), plus the fact that they shared the same common school facilities, such as the canteen and playgrounds. 135. The schools in question also organised special activities for all pupils to improve non-Roma children ’ s understanding of Roma traditions and culture. These activities included celebrating Roma Day, organising visits to Roma settlements, informing pupils about the Romani language and customs and the problems Roma faced in everyday life, and encouraging Roma pupils to publish texts and poems in school magazines. 3. The third-party interveners (a) The Government of the Slovak Republic 136. The Government of the Slovak Republic recognised the need to address the learning difficulties of certain pupils, such as lack of proficiency in the language of instruction at schools. They found different compensatory measures adopted in that respect constructive. They referred to the margin of appreciation afforded to the States in the sphere of education and stressed that the States should not be prohibited from setting up separate classes at different types of school for children with difficulties, or from implementing special educational programmes to respond to special needs. 137. Although the special needs of children with learning difficulties had to be addressed, that could not take precedence over the effective functioning of an education system, which had to remain compact and not fragmented according to the needs of each individual pupil. Thus, the placing of a child in a different class on objective and legitimate grounds, such as lack of proficiency in the language of instruction, could not be considered discriminatory. The other relevant factors in respect of the present case were the attitudes of parents and the possibility of transferring pupils to mixed classes, as well as the content of the school curriculum. (b) Interights 138. Interights stressed the necessity for the Court to develop a comprehensive body of case-law on the substantive aspects of the right to education. The obligation to respect the right to education required States Parties to avoid measures that hindered or prevented the enjoyment of this right. The obligation to ensure that education was both adequate and appropriate required States to take positive measures that would enable and help individuals and communities to fully enjoy the right to education. The principal aims of education could only be achieved where children from different cultural backgrounds were educated together in integrated schools. 139. Access to education without discrimination implied that children should have the opportunity to participate in, and benefit from, a mainstream educational system that ensured their integration into society. All international standards on education were buttressed by the principle of non-discrimination. Because of the paramount importance of the right to education, the failure to secure that right to children of ethnic or linguistic minorities would undermine the ability of those minorities to break the cycle of poverty and marginalisation which many of them suffered from. 140. There were effective and practical alternatives to segregation in schools on the basis of linguistic and cultural differences. Segregation could effectively deny a minority their right to learn the majority language with consequential negative impact on their ability to benefit from education and to effectively participate in, and integrate into, general society. State-enforced segregation on the basis of culture or ethnicity was not permissible. While States should not segregate or exclude pupils on the basis of language in a discriminatory manner, they needed to adopt certain measures which would temporarily affect the segregation of pupils based on insufficient command of the language of instruction. However, a very narrow margin of appreciation was to be applied in that sphere in order to ensure that the segregation occurred only on the basis of valid linguistic needs and did so in a manner that ensured that pupils should be fully integrated on an appropriate and timely basis. (c) Greek Helsinki Monitor 141. Referring to the Court ’ s case-law concerning the right to education and in particular to the judgments in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV ) and Sampanis and Others v. Greece (no. 32526/05, 5 June 2008), the Greek Helsinki Monitor stressed the importance of tests aimed at assessing the educational level of children upon their enrolment in schools, as well as the need to ultimately assign all Roma children to ordinary, mainstream classes. He also highlighted that the principle of integrated education could be diverged from only in certain exceptional circumstances and that only the integrative educational policy was compatible with the role of the member States ’ educational systems. 142. The interveners further relied on the Action Plan on Improving the Situation of Roma and Sinti within the OSCE (Organization for Security and Co - operation in Europe) area, which urged the member States to “develop and implement comprehensive school desegregation programmes aimed at: (1) discontinuing the practice of systemically routing Roma children to special schools or classes; and (2) transferring Roma children from special schools to mainstream schools”. The interveners also relied on the relevant Council of Europe sources, cited above. C. The Court ’ s assessment 143. The applicants in the present case made complaints under Article 2 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention, claiming that the fact that they had been allocated to Roma-only classes during their primary education violated their right to receive an education and their right not to be discriminated against. However, the Grand Chamber sees this case as raising primarily a discrimination issue. 144. In this connection, the Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999 ‑ III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005 ‑ XII ). 145. The complaint in the present case concerns alleged discrimination in respect of the applicants ’ right to education on account of their having been assigned, for part of their schooling, to separate classes constituted, according to them, on the basis of ethnic criteria. The Government, for their part, claimed that the applicants had been placed in separate classes on account of their inadequate command of the Croatian language. It follows that the central question to be addressed in the present case is whether adequate steps were taken by the school authorities to ensure the applicants ’ speedy progress in acquiring an adequate command of Croatian and, once this was achieved, their immediate integration into mixed classes. In this connection, the curriculum followed by the applicants and the procedures concerning their transfer to mixed classes appear of high importance. Thus, the alleged inequality of treatment in the enjoyment of the right to education is a fundamental aspect of the present case and the issues pertinent to this case are to be analysed from the standpoint of Article 1 4 of the Convention read in conjunction with Article 2 of Protocol No. 1. 146. The right to education, as set out in the first sentence of Article 2 of Protocol No. 1, guarantees everyone within the jurisdiction of the Contracting States “a right of access to educational institutions existing at a given time”, but such access constitutes only a part of the right to education. For that right “to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed” (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 30-32, §§ 3-5, Series A no. 6 – “the ‘ Belgian linguistic ’ case”; Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A no. 23; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 152, ECHR 2005 ‑ XI ). 147. While the case at issue concerns the individual situation of the fourteen applicants, the Court nevertheless cannot ignore that the applicants are members of the Roma minority. Therefore, in its further analysis the Court shall take into account the specific position of the Roma population. The Court has noted in previous cases that as a result of their history, the Roma have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the Parliamentary Assembly ’ s Recommendation No. 1203 (1993) on Gypsies in Europe, cited in paragraph 81 above, and point 4 of its Recommendation No. 1557 (2002) on the legal situation of Roma in Europe, cited in paragraph 8 3 above). They therefore require special protection. As is attested by the activities of numerous European and international organisations and the recommendations of the Council of Europe bodies, this protection also extends to the sphere of education. The present case therefore warrants particular attention, especially as when the applications were lodged with the Court the applicants were minor children for whom the right to education was of paramount importance (see D.H. and Others, cited above, § 182 ). 148. Lastly, as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory framework and in reaching decisions in particular cases (see Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001 - I, and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004). In Chapman, the Court also observed that there could be said to be an emerging international consensus among the member States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community (see D.H. and Others, cited above, § 181). 1. Whether there was a difference in treatment 149. According to the Court ’ s well-established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 - IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005 ). However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (see the ‘ Belgian linguistic ’ case, cited above, p. 34, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV; and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI ). Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of ethnic origin as compatible with the Convention (see Timishev, cited above, § 56 ). 150. The Court has also accepted that 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 only on the basis of an ethnic criterion, may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and Sampanis and Others, cited above, § 68 ), unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate. Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 ‑ VIII ). Where an applicant produces prima facie evidence that the effect of a measure or practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that the difference in treatment is not discriminatory (see D.H. and Others, cited above, § § 180 and 189). 151. The Court points out at the outset that it has recently adopted two judgments in the sphere of education of Roma children finding that the applicants were discriminated against on the basis of their ethnic origin, namely D.H. and Others and Sampanis and Others (both cited above). The D.H. and Others judgment concerned a situation where a nationwide practice of placing a disproportionate number of Roma children in schools for pupils with learning difficulties amounted to discrimination based on the applicants ’ ethnic origin. In Sampanis and Others the Court found that the practice of first denying Roma children enrolment in school and their subsequent placement in special classes located in an annex to the main building of a primary school, coupled with a number of racist incidents in the school instigated by the parents of non-Roma children, also amounted to discrimination based on the applicants ’ Roma origin. 152. The present case is to be distinguished from the above two cases, in particular regarding the relevance of the statistics in the three cases, which could have a bearing on whether there is prima facie evidence of discrimination and consequently on the burden of proof. In D.H. and Others (cited above, § 18) the Court established that between 50 % and 70% of Roma children in the Czech Republic attended special schools for pupils with learning difficulties, while in Sampanis and Others (cited above, § 81) all Roma children attending the school at issue were allocated to a separate establishment. As to the present case, the Court firstly notes that the applicants, unlike in the Sampanis and Others case, attended regular primary schools and that the Roma-only classes were situated in the same premises as other classes. The proportion of Roma children in the lower grades in Macinec Primary School varies from 57 % to 75%, while in Podturen Primary School it varies from 33 % to 36%. The data submitted for the year 2001 show that in Macinec Primary School 44% of pupils were Roma and 73% of those attended a Roma-only class. In Podturen Primary School 10% of pupils were Roma and 36% of Roma pupils attended a Roma-only class. These statistics demonstrate that only in Macinec Primary School did a majority of Roma pupils attend a Roma-only class, while in Podturen Primary School the percentage was below 50%. This confirms that it was not a general policy to automatically place Roma pupils in separate classes in both schools at issue. Therefore, the statistics submitted do not suffice to establish that there is prima facie evidence that the effect of a measure or practice was discriminatory. 153. However, indirect discrimination may be proved without statistical evidence (see D.H. and Others, cited above, § 188). In this connection, the Court notes that the measure of placing children in separate classes on the basis of their insufficient command of the Croatian language was applied only in respect of Roma children in several schools in Međimurje County, including the two primary schools attended by the applicants in the present case. Thus, the measure in question clearly represents a difference in treatment. 154. As regards the grounds for the applicants ’ placement in separate classes, the Court is also mindful of the general comments made in the third ECRI report on Croatia, published on 14 June 2005 (see paragraph 67 above), which refers to “ allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools, they came up against opposition from the non-Roma parents, who apparently signed petitions against this measure, with the result that the separate classes were maintained”. The Commissioner for Human Rights, in the report on his visit to Croatia (see paragraph 72 above), referred to a similar situation in the following passage: “The year 2002 saw the worsening of problems around the town of Čakovec, which applied a practice of separating Roma and non-Roma pupils in schools. An atmosphere of intolerance took hold; non-Roma parents went so far as to stage a demonstration in front of a school at the start of the 2002/03 school year, denying entry to the Roma children.” 155. In the circumstances of the present case, and even without any discriminatory intent on the part of the relevant State authorities, the fact that the measure in question was applied exclusively to the members of a singular ethnic group, coupled with the alleged opposition of other children ’ s parents to the assignment of Roma children to mixed classes, calls for an answer from the State to show that the practice in question was objectively justified by a legitimate aim and that the means of achieving that aim were appropriate, necessary and proportionate. 2. Whether the difference in treatment had an objective and reasonable justification 156. According to the Court ’ s case-law, a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, among many other authorities, Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I; Stec and Others, cited above, § 51; and D.H. and Others, cited above, § 196 ). Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible (see Sampanis and Others, cited above, § 69). 157. The Court considers that temporary placement of children in a separate class on the ground that they lack an adequate command of the language is not, as such, automatically contrary to Article 14 of the Convention. It might be said that in certain circumstances such placement would pursue the legitimate aim of adapting the education system to the specific needs of the children. However, when such a measure disproportionately or even, as in the present case, exclusively, affects members of a specific ethnic group, then appropriate safeguards have to be put in place (see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports 1996 ‑ IV; Connors, cited above, § 83; and Timishev, cited above, § 56). Thus, the Court must now examine whether there existed such safeguards at each stage of the implementation of the measures complained of and whether they were effective. (a) Initial placement of the applicants in separate classes 158. The Court first notes that there existed no clear and specific legal basis for placing children lacking an adequate command of the Croatian language in separate classes. The laws relied on by the Government, namely, the Primary Education Act and the Rules on the number of pupils in regular and multi- grade classes, did not provide for separate classes for children lacking proficiency in the Croatian language. The Government have not shown that this practice has been applied in respect of any other pupils lacking an adequate command of the Croatian language in any other part of Croatia, and not only in respect of Roma children in several schools in Međimurje County, including the two schools in question. Consequently, the impugned measures can hardly be seen as part of a common and general practice designed to address the problems of children who lack an adequate command of the Croatian language. 159. Moreover, the tests applied for deciding whether to assign pupils to Roma-only classes are not specifically designed to test the children ’ s command of the Croatian language. Where the State authorities opt to place children in a separate class on the ground that the children lack an adequate command of the Croatian language, the testing of such children should be specifically designed to assess their knowledge of the language. In its Opinion on Croatia, adopted on 6 April 2001, the Advisory Committee on the Framework Convention for the Protection of National Minorities stressed that “placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests” (see paragraph 68 above). 160. In the present case no specific testing of the applicants ’ command of the Croatian language took place. The testing of the applicants who attended Macinec Primary School (the eleventh to fifteenth applicants) was designed to test the children ’ s general psycho-physical condition, not their knowledge of the Croatian language in particular. As regards the applicants who attended Podturen Primary School (the second to tenth applicants), the Government have not shown that they were ever effectively tested in this respect (see paragraph 12 7 above). 161. Furthermore, certain inconsistencies in respect of some individual applicants cannot be ignored. For example, both the second and the tenth applicants were initially placed in a mixed class in Podturen Primary School upon enrolling in the first grade in the school year 1997/98. Only after two years were they transferred to a Roma-only class. Assuming that, as the Government contend, insufficient knowledge of the Croatian language was the reason for placing Roma children in Roma-only classes, it is difficult to understand why the second and the tenth applicants would have had sufficient knowledge of the Croatian language at the age of seven, when they started primary school, but not two years later, when they were transferred to a Roma-only class. It is equally improbable that it should have taken two years for their respective class teachers to note the applicants ’ insufficient command of the language. Even if these two applicants might have had some learning difficulties, as suggested by the fact that they failed to go up a grade for the initial two years of their schooling, these difficulties would not appear to have been adequately addressed simply by placing the applicants concerned in a Roma-only class. The tenth applicant, for his part, was offered an adapted curriculum by reason of his developmental difficulties only in the school year 2005/06, that is to say not until eight years after he enrolled in primary school and when he had already reached the age of 15 and thus soon to leave school. 162. The Court does not consider satisfactory the explanation given by the Government that, although these two applicants ’ command of the Croatian language had been inadequate when they enrolled in school, in those years there were no Roma-only classes in their school. For the fact remains that the applicants ’ insufficient command of the Croatian language was not adequately addressed for the first two years of their schooling. (b) Curriculum 163. As regards the curriculum provided in Roma-only classes, the Government first argued that it was the same as in any other classes of the same grade and that all subjects were taught in Croatian. Yet, at the same time they contended that the applicants ’ command of the Croatian language had been insufficient to follow the regular school curriculum with the other pupils. The Government also admitted that the curriculum in Roma-only classes might have been reduced by up to 30% compared with the full standard curriculum, such a reduction being permissible under national laws and not reserved for Roma-only classes but accepted and allowed in respect of any primary school class in Croatia, depending on the abilities of the pupils in a given class. 164. The Court notes that if the applicants were taught the same curriculum as all other pupils, there appears to be no reason to have placed them in separate classes. However, if they were placed in separate classes because they lacked an adequate command of the Croatian language, the regular curriculum, taught in Croatian, could not possibly address their needs. Furthermore, the Government ’ s contention that the applicants followed a regular curriculum is difficult to reconcile with the comments submitted on 26 September 2001 by the Croatian Government in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, according to which “ [t] he Ministry of Education and Sports, in cooperation with the local administration, has taken a number of measures for this purpose [ namely, to overcome the language barrier ] – additional assistance to overcome problems concerning the following and comprehension of school lessons, adaptation of curricula to the needs of Roma children ... ” (see paragraph 69 above). Thus, it would appear that the Roma children followed an “adapted curriculum”, though it is not clear what exactly that included. 165. As regards the fact that the curriculum taught in Roma-only classes might have been reduced by 30%, the Court first notes that the Government have not indicated the exact legal basis for such a reduction. Secondly, and more importantly, they have not shown how the mere fact of a possible reduction of the curriculum could be considered an appropriate way to address the applicants ’ alleged lack of proficiency in Croatian. Since, as indicated by the Government, teaching in the schools in question was in Croatian only, the State in addition had the obligation to take appropriate positive measures to assist the applicants in acquiring the necessary language skills in the shortest time possible, notably by means of special language lessons, so that they could be quickly integrated into mixed classes. 166. In this connection, the Court refers to the above-mentioned comments submitted by the Croatian Government in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, according to which “those children who do not speak the Croatian language may well be enrolled in special classes where they receive special attention with a view to learning the Croatian language” (see paragraph 69 above). The applicants, however, once assigned to Roma-only classes, were not provided with any specific programme in order to address their alleged linguistic deficiencies. Nor have the Government shown the existence of any written instructions or guidelines concerning the programme to be followed by pupils assigned to Roma-only classes. 167. As to the existence of additional Croatian classes, which, according to the Government ’ s submission, was one of the means by which the applicants ’ language deficiencies had been addressed, it would appear that the third, fourth and fifth applicants were never provided with such classes, although all three of them attended a Roma-only class for at least the first two years of their primary education. 168. As regards the sixth to eleventh applicants, it was not until their third grade that they were offered additional Croatian language lessons, although they were all placed in a Roma-only class from their first grade. 169. The thirteenth to fifteenth applicants were offered additional language classes only in the first year of their schooling. Yet they all stayed in a Roma-only class for the rest of their primary schooling. 170. Only the twelfth applicant was systematically offered additional Croatian language classes in the first, second and third grade. However, he spent his entire primary schooling in a Roma-only class. 171. In any event, even such additional classes in Croatian could at best only compensate in part the lack of a curriculum specifically designed to address the needs of pupils placed in separate classes on the ground that they lacked an adequate command of Croatian. (c) Transfer and monitoring procedure 172. As to the transfer from Roma-only to mixed classes, the Government, both in the proceedings before the national courts and before this Court, argued that the homogeneity of each class had been an important factor in not transferring the applicants to a mixed class. However, as indicated above, the placement of the applicants in Roma-only classes could be seen as pursuing a legitimate aim only if it served the purpose of bringing their command of the Croatian language up to an adequate level and then securing their immediate transfer to a mixed class. 173. In this respect, it is to be noted that no programme was established for addressing the special needs of Roma children lacking language skills that included a time frame for the various phases of acquisition of the necessary language skills. As a result, the Court is of the opinion that the time the applicants spent in Roma-only classes appears to fall short of the requirement that their immediate and automatic transfer be ensured as soon as adequate language proficiency was attained. 174. In the above-mentioned comments in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, the Government stated that “ [t] his practice [of placing of Roma-children in separate classes] is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities” (see paragraph 69 above). The Court also refers to the Opinion on Croatia of the Advisory Committee on the Framework Convention for the Protection of National Minorities, adopted on 1 October 2004, according to which “pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned, and where such placing is found necessary, it should be for a limited period only” (see paragraph 70 above). 175. Yet the applicants in the present case each spent a substantial period of their education in Roma-only classes. The eleventh to fifteenth applicants spent all eight years of their schooling in a Roma-only class, while the second to tenth applicants attended at times both Roma-only and mixed classes. However, no particular monitoring procedure was in place. Although some of the applicants at times attended mixed classes, the Government failed to show that any individual reports were drawn up in respect of each applicant and his or her progress in learning Croatian. Such reports appear necessary in order to ensure objectivity as well as to identify problem areas which could then be addressed, if needed, with additional measures. The lack of a prescribed and transparent monitoring procedure left a lot of room for arbitrariness. (d) Poor school attendance and high drop-out rate 176. One of the problems highlighted in the reports of the Council of Europe bodies concerning Croatia was the poor school attendance of Roma children and their high drop-out rate. In the second ECRI report on Croatia, published on 3 July 2001, it is stated that “many Roma/Gypsy children do not go to school, having either dropped out or having never attended” (see paragraph 66 above). This observation was confirmed in the third ECRI report on Croatia, published on 14 June 2005, according to which “ [ m ] any Roma children leave school at a very early age” (see paragraph 67 above). The statistics submitted by the applicants for Međimurje County and not refuted by the Government show a drop-out rate of 84% for Roma pupils before completing primary education. The applicants in the present case, without exception, left school at the age of 15 without completing primary education. Their school reports show poor attendance. 177. While the Croatian authorities cannot be held to be the only ones responsible for the fact that so many pupils failed to complete primary education or to attain an adequate level of language proficiency, such a high drop-out rate of Roma pupils in Međimurje County called for the implementation of positive measures in order, inter alia, to raise awareness of the importance of education among the Roma population and to assist the applicants with any difficulties they encountered in following the school curriculum. Therefore, some additional steps were needed in order to address these problems, such as active and structured involvement on the part of the relevant social services. However, according to the Government, the social services had been informed of the pupil ’ s poor attendance only in the case of the fifth applicant. No precise information was provided on any follow-up. (e) The involvement of the applicants ’ parents 178. The Government emphasised the parents ’ passivity and lack of objections in respect of the placement of their children in separate classes, as well as on the fact that they had not requested their transfer to mixed classes. In this connection, the following conclusions reached in the D.H. and Others case appear to be of relevance: “202. As regards parental consent, the Court notes the Government ’ s submission that this was the decisive factor without which the applicants would not have been placed in special schools. In view of the fact that a difference in treatment has been established in the instant case, it follows that any such consent would signify an acceptance of the difference in treatment, even if discriminatory, in other words a waiver of the right not to be discriminated against. However, under the Court ’ s case-law, the waiver of a right guaranteed by the Convention – in so far as such a waiver is permissible – must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent ( see Pfeifer and Plankl v. Austria, 25 February 1992, §§ 37-38, Series A no. 227 ) and without constraint ( see Deweer v. Belgium, 27 February 1980, § 51, Series A no. 35 ). 203. In the circumstances of the present case, the Court is not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent. ... 204. In view of the fundamental importance of the prohibition of racial discrimination (see Nachova and Others, cited above, § 145, and Timishev, cited above, § 56), the Grand Chamber considers that, even assuming the conditions referred to in paragraph 202 above were satisfied, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest (see, mutatis mutandis, Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006 -XII ).” 179. The same applies to the failure of the applicants ’ parents in the present case to raise objections to the placement of their children in Roma-only classes and their failure to seek their transfer to mixed classes. (f) Conclusion 180. As appears from the Court ’ s judgment in D.H. and Others (cited above), the documentation produced by ECRI and the report of the Commissioner for Human Rights of the Council of Europe on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (dated 15 February 2006; see paragraphs 7 3 to 76 above ), a number of European States encounter serious difficulties in providing adequate schooling for Roma children. The Croatian authorities have sought to tackle the problem. However, in their attempts to achieve the social and educational integration of the disadvantaged group which the Roma form, they have had to contend with numerous difficulties as a result of, inter alia, the cultural specificities of that minority and an alleged degree of hostility on the part of the parents of non-Roma children. As the Grand Chamber noted in the above - mentioned D.H. and Others judgment, the choice of the best means to address learning difficulties of children lacking proficiency of the language of instruction is not an easy one. It entails a difficult balancing exercise between the competing interests. As to the setting and planning of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule ( see D.H. and Others, cited above, § 205, and Valsamis v. Greece, 18 December 1996, § 28, Reports 1996-VI). 181. Nevertheless, whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation (see Buckley, cited above, § 76, and Connors, cited above, § 83). 182. The facts of the instant case indicate that the schooling arrangements for Roma children were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had sufficient regard to their special needs as members of a disadvantaged group (see, mutatis mutandis, Buckley, cited above, § 84, and Connors, cited above, § 84). Furthermore, as a result of the arrangements the applicants were placed in separate classes where an adapted curriculum was followed, though its exact content remains unclear. Owing to the lack of transparency and clear criteria as regards transfer to mixed classes, the applicants stayed in Roma-only classes for substantial periods of time, sometimes even during their entire primary schooling. 183. A very positive aspect is the possibility of further education for Roma children who failed to complete primary education by the age of 15. After leaving primary school, the applicants had the possibility of enrolling in the government-funded evening school in Čakovec (a nearby town) in order to complete their education. Although all expenses were covered by the Government, only three of the applicants availed themselves of this opportunity, and only one actually completed the evening school. However, most of these developments took place after the period that is to be examined in respect of the applicants in the present case. They cannot repair the above-described deficiencies in the applicants ’ education. 184. In sum, in the circumstances of the present case and while recognising the efforts made by the Croatian authorities to ensure that Roma children receive schooling, the Court considers that there were at the relevant time no adequate safeguards in place capable of ensuring that a reasonable relationship of proportionality between the means used and the legitimate aim said to be pursued was achieved and maintained. It follows that the placement of the applicants in Roma-only classes at times during their primary education had no objective and reasonable justification. 185. The Court therefore finds that in the present case there has been a violation of Article 14 of the Convention taken together with Article 2 of Protocol No. 1. 186. In view of that conclusion, it is not necessary to examine the complaint under Article 2 of Protocol No. 1 taken alone. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 187. Article 41 of the Convention provides: “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. The Chamber judgment 188. The Chamber, in view of the violation found, considered that the applicants had sustained non-pecuniary damage because the length of the proceedings before the national courts had exceeded a “reasonable time”, and that it was therefore appropriate to award them compensation. Ruling on an equitable basis, it awarded each applicant 1,300 euros (EUR) under this head, plus any tax that might be chargeable. It also awarded the applicants jointly EUR 2,000 for costs and expenses, plus any tax that might be chargeable. B. The parties ’ submissions 189. The applicants claimed EUR 22,000 each in respect of non-pecuniary damage and EUR 20,316.50 jointly for costs and expenses incurred at domestic level and before the Court. 190. The Government argued that the applicants ’ claim in respect of non-pecuniary damage should be rejected. As regards the claim for costs and expenses in respect of the proceedings before the Court, the Government deemed it excessive. C. The Court ’ s assessment 1. Non-pecuniary damage 191. The Court considers that the applicants must have sustained non-pecuniary damage – in particular as a result of the frustration caused by the indirect discrimination of which they were victims – for which the finding of a violation of the Convention does not afford sufficient redress. However, the Court considers the amounts claimed by the applicants to be excessive. Ruling on an equitable basis, it assesses the non-pecuniary damage sustained by each of the applicants at EUR 4, 5 00. 2. Costs and expenses 192. The Court reiterates that legal costs are only recoverable to the extent that they relate to the violation that has been found ( see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). The Court notes that Mrs Kušan, Mr Dobrushi and Mr Alexandridis have each submitted details of their professional fees, as well as the costs of translation of the relevant documents. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court makes a joint award to all the applicants of EUR 10,000 for costs and expenses. 3. Default interest 193. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
Even though the present case differed from D.H. and Others v. the Czech Republic (see above) in that it had not been a general policy in both schools to automatically place Roma pupils in separate classes, it was common ground that a number of European States encountered serious difficulties in providing adequate schooling for Roma children. In the instant case, the Court observed that only Roma children had been placed in the special classes in the schools concerned. The Croatian Government attributed the separation to the pupils’ lack of proficiency in Croatian; however, the tests determining their placement in such classes did not focus specifically on language skills, the educational programme subsequently followed did not target language problems and the children’s progress was not clearly monitored. The placement of the applicants in Roma-only classes had therefore been unjustified, in violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2 (right to education) of Protocol No. 1 to the Convention. Others v. Greece