The judgment under review forms part of an increasingly consolidated line of Strasbourg case-law on ethnic discrimination, confirming that the protection afforded by the Court rests on a twofold set of State obligations: a negative one, requiring States to refrain from any discriminatory conduct, and a positive one, requiring States to take active steps to prevent the very risk of discrimination from materialising. This framework finds paradigmatic application with regard to the Roma community, recognised by the Court as a particularly vulnerable socio-cultural group deserving, for that very reason, of heightened protection.

An applicant of Roma origin was placed in special schools after undergoing diagnostic tests aimed at establishing a mild intellectual disability. Before the domestic courts – from the District Court of Malacky up to the Slovak Constitutional Court, which declared the application manifestly ill-founded – she complained of direct and indirect discrimination on account of her ethnic origin, pointing to the structural situation in Slovakia: around 86% of pupils enrolled in special classes were Roma, with a probability of being placed there 28 times higher than for the rest of the population (ECRI reports, 2008-2014), a figure rising to 80% in some regions according to the Council of Europe Commissioner for Human Rights (2001). The applicant further submitted that the tests she had taken were culturally, socially and linguistically biased, not having been designed for a population that, like her family, spoke Romanian and a Western Slovak dialect at home.

The Court starts from the well-established notion of discrimination under Article 14: treating persons in relevantly similar situations differently, without objective and reasonable justification. It nevertheless clarifies that the provision does not prevent States from treating groups differently in order to correct “factual inequalities”; on the contrary, failure to correct such inequalities through differential treatment may itself amount to a violation. Discrimination based on ethnic origin is characterised as a form of racial discrimination, particularly insidious given its dangerous consequences, requiring special vigilance and a vigorous reaction from the authorities, so that diversity is perceived not as a threat but as a source of enrichment for democratic society. On this basis, the Court reaffirms that no difference in treatment based solely or to a decisive extent on ethnic origin can be objectively justified in a contemporary democratic society founded on the principles of pluralism and respect for different cultures.

As regards Article 2 of Protocol No. 1, the Court recalls that the notion of “respect” entails not merely a negative commitment of non-interference but also a positive obligation on the part of the State, while leaving States a wide margin of appreciation as to the specific measures to be adopted, given the diversity of practices and situations existing across Contracting States.

On the evidentiary level, the Court holds that the statistical data revealing the marked over-representation of Roma pupils in special classes points to a dominant trend attributable to a general policy or measure producing a disproportionately prejudicial effect on a particularly vulnerable group: this is sufficient to establish a prima facie case of indirect discrimination, shifting onto the State the burden of showing that the tests used were genuinely capable of assessing individual abilities fairly and objectively, regardless of ethnic origin. The Court recalls in this respect the State's positive obligation not to perpetuate past discrimination, including where it is disguised as ostensibly neutral practice.

In the case at hand, that burden was not discharged: the tests administered to the applicant were the same as those used for the entire school population, with no adjustment made to account for the linguistic and socio-cultural specificities of the Roma community. Moreover – the Court observes – the purpose of such tests was normally to rule out mild intellectual disability rather than to confirm it; since that exclusion had not occurred in the applicant's case, the diagnosis rested on a generic instrument, devoid of any adaptation for pupils from disadvantaged socio-economic backgrounds. The State therefore failed to show that it had made good-faith efforts to implement non-discriminatory testing, or that it had put in place the safeguards required by its positive obligations to put an end to a history of racial segregation in special education and to protect Roma pupils as members of a disadvantaged group. The Court accordingly found a violation of Article 14 taken in conjunction with Article 2 of Protocol No. 1.

 

(Comment by Bruno Pitingolo)