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Horváth and Kiss v. Hungary: a strong new Roma school segregation case

February 6, 2013

The Strasbourg Court has once more delivered a judgment in a Roma school segregation case. The applicants in Horváth and Kiss v. Hungary are two young Roma men, who were diagnosed as having mild mental disabilities when they were children. As a result of these diagnoses, they were placed in a remedial school. Their education there was poor: the curriculum was underdeveloped, their schooling did not give them access to the type of job they wanted, and they ended up de facto segregated from the wider population. The applicants claim that their education in the remedial school constituted ethnic discrimination in their enjoyment of their right to education (Article 2 Protocol 1 in conjunction with Article 14 ECHR). The Strasbourg Court rules that they’re right: it finds a violation of the Convention on the ground of indirect ethnic discrimination.

Much of the reasoning in this case is familiar from other Roma school segregation cases, such as, notably, D.H. and Others v. Czech Republic (2007) and Oršuš and Others v. Croatia (2010). In this post, I will discuss the judgment and try to highlight what’s new in the Court’s reasoning.

Judgment

I’ll be brief about the kind of steps the Court takes in an indirect discrimination case such as this one: the main principles are familiar from the other Roma school segregation cases. In a nutshell, then, the Court first establishes that there is a prima facie case of discrimination, because both in the past and in the present Roma kids have been overrepresented in remedial schools in Hungary in general, and also in this one in  the city of Nyíregyháza  in particular (par. 110-111). It then falls to the State to prove that “the difference in treatment had no disproportionately prejudicial effects”(par. 112). At this point, the judgment becomes a bit rambling. For the Court, the main issue seems to be:

to ascertain to what extent special safeguards were applied that would have allowed the authorities to take into consideration, in the placement and regular biannual review process, the particularities and special characteristics of the Roma applicants who sat them, in view of the high risk of discriminatory misdiagnosis and misplacement. (par. 121)

 The answer to this is “no”; the State did not put in place the necessary safeguards to prevent misdiagnosis. The Government itself had acknowledged that the tests, which were the same for Roma children as for children from the ethnic majority, were partly culturally biased (par. 120). It is for this reason that the Court finds that the State’s argument that it properly tested the Roma kids, cannot serve as a sufficient justification for the impugned treatment (par. 123). The Court concludes that:

As a consequence, [the applicants] received an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special schools. The education provided might have compounded their difficulties and compromised their subsequent personal development instead of helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population. (par. 127)

Comments

First of all, what I appreciate about this judgment is that the Court discusses both the problems relating to the long-standing inequality and discrimination of Roma, and the difficulties of children with learning disabilities. You might say that the Court takes an intersectional approach; combining a Roma-equality perspective with a mental disability perspective. The Court’s reasoning captures well the complexity of the situation wherein the applicants find themselves.

The other thing I appreciate is that the Court does not go along with the argument of the applicants that “Roma were uniquely burdened by the current system; no other protected group had been shown to have suffered wrongful placement in special schools based on the diagnostic system.” (par. 91). I can see why the applicants would make such an argument: they thought that in order to establish a prima facie case of discrimination, they had to prove that – as a group – they had it worst. Fortunately, the Court holds that a vulnerability competition (meaning a competition amongst groups for recognition of their vulnerability) is not necessary. The Court namely observes that:

a general policy or measure exerted a disproportionately prejudicial effect on the Roma, a particularly vulnerable group. For the Court, this disproportionate effect is noticeable even if the policy or the testing in question may have similar effect on other socially disadvantaged groups as well. The Court cannot accept the applicants’ argument that the different treatment as such resulted from a de facto situation that affected only the Roma (par. 110).

The lesson here for applicants and their lawyers is that they need not enter into a vulnerability competition in order to have their indirect discrimination claims recognized. In my view, such a competition could only have perverse effects; a race to the bottom is not what Strasbourg case law should be about.

So what’s new?

I think the novelty of this judgment lies in the Court’s reasoning about positive obligations. To my knowledge this is the first time that the Court has talked of “the positive obligations of the State to undo a history of racial segregation in special schools” (par. 127). “[I]n light of the recognised bias in past placement procedures”, the Court says “that the State has specific positive obligations to avoid the perpetuation of past discrimination or discriminative practices disguised in allegedly neutral tests.” (par. 116).

So far, the kind of positive obligation that the Court recognized in Roma school segregation cases had been procedural. In Oršuš, for example, the Court spoke of the obligation to put in place “safeguards that would ensure that . . .the State had sufficient regard to [Roma children’s] special needs as members of a disadvantaged group” (Oršuš, par. 183). In the present case, the Court goes a step further by insisting on a substantive positive obligation, namely to “undo a history of racial segregation in special schools”.

This goes quite far. But whether this entails a specific obligation on the State to provide specialized tests for children from a Roma background, and for children from other socially disadvantaged backgrounds, I am still not sure.

6 Comments leave one →
  1. February 6, 2013 4:25 pm

    Reblogged this on Roma Solidarity News.

  2. February 8, 2013 2:29 pm

    Dear Alexandra,
    I am a great fan and particularly grateful this time for your comments on Horváth and Kiss.
    I agree with much of your analysis and would like to offer further insight into this case and how it was in fact argued. Regrettably, the judgment does not fully reproduce the applicants’s arguments, but similar to DH and Others, this case was argued primarily as a direct race discirmination case, and only secondarily as an indirect race discrimination case. The submission and applicants’ observations can be downloaded from the bottom of this page: http://www.cfcf.hu/nyiregyhaza-felrediagnosztizalas_hu.html
    The case grew out of a strategic litigation effort initiated by then MEP Viktória Mohácsi. The clients were hand-picked by experts out of 60 children. In 2005, five sets of cases were taken to civil courts in Hungary and the only one that succeeded at least at one domestic instance was Horváth and Kiss. The Hungarian Roma rights movement sought to establish much of what the ECtHR found in this case.
    1. misdiagnosing otherwise mentally sound Roma children as mentally disabled amounts to race (ethnicity) discrimination.
    2. basically no justification exists for the above race (ethnicity) discrimination, because race discrimination is subject to strict scrutiny.
    3. in the Hungarian context, misdiagnosis results in segregation, whereby children such as the applicants study in special schools. In Hungary, non-disabled children study in mainstream (normal) schools, whereas disabled (meaning physical, sensory and mental disability) children study in special schools. (There are concessions made in the system, but let me keep the description simple.) Special schools are thus segregated on the basis of disability and their curriculum is lower. This stigmatises disabled children on the ground of their disability and stigmatises misdiagnosed (meaning: non-disabled) Roma children on the ground of their race. The two-tier system of public education exists in the whole CEE region, hence the analogies with DH and Others. Significantly, the IQ scores used to determine the upper limits of mental disability in HU at the material time were higher than those proposed by WHO (para.118), which made misdiagnosis even more likely.
    4. States Parties are under the duty to remedy race discrimination (misdiagnosis) by way of implementing positive action measures.
    5. what was achieved in DH and Others at the appeal level with a divided vote was consolidated in Horváth and Kiss with a unanimous vote
    6. the bonus finding is obiter dicta: discrimination on the ground of mental disability will also be subject to strict scrutiny and it may be that a state duty exists to remedy discrimination based on this ground as well (para. 128.).
    Misdiagnosis = direct race discrimination
    Significantly, the case was argued on the basis of EU anti-discrimination law transposed into domestic law (namely the Racial Equality Directive, 43/2000/EC, RED). The applicants construed misdiagnosis as direct race discrimination. Under the RED and HU law misdiagnosis amounts to direct discrimination, because 1. the applicants had a protected ground (race, ethnicity), 2. they suffered less favourable treatment on this ground (on the ground of their Romani ethnic origin they were treated as mentally disabled), and 3. their comparators were treated more favourably (ethnic majority children were not misdiagnosed). The burden of proof provisions in HU required the applicants to establish their protected ground and the less favourable treatment, but not the causal link between the protected ground (race, ethnicity) and the less favourable treatment (being treated as mentally disabled even though they were NOT mentally disabled).
    In essence, the applicants argued that the diagnosis and the IQ tests used for determining which type of school a child shall attend were racially biased. In order to support this claim, they relied on the 40 year long and well documented history of the misdiagnosis of Roma children in HU, the deviation from WHO standards and the statistical data that showed a gross overrepresentation of Romani children in special schools. Last, they relied on the Court’s assessment in DH – which was repeated in Horváth and Kiss as well, para. 121 and 123 – that the tests in question were in fact culturally (meaning: racially) biased.
    Secondarily, the applicants invoked the CJEU’s Maruko judgment, arguing that the diagnostic system has for 40 years been proven to disadvantage one group and one group only, that of the Roma. The Court rejected this scientific data based argument in a rather summary fashion, without even requiring the respondent State or itself to provide a reason why and based on what it had done so (para. 110).
    Misdiagnosis is not intersectional (multiple) discrimination
    As you may have noticed above, what causes confusion in misdiagnosis cases is that the less favourable treatment of non-disabled Romani children roughly equals the less favourable treatment disabled children (of any ethnic origin: Romani, majority, minority, etc.) suffer in special schools. In other words, race discrimination is built on disability discrimination. The segregation of disabled children in special schools is the conditio sine qua non of the segregation of misdiagnosed Roma children in the same schools. If disabled children had not been segregated in special schools but taught in integrated mainstream schools, misdiagnosed Roma children could not be segregated in special schools either.
    This causal link may be the reason why the Court felt compelled to call attention to prejudice against the mentally disabled (para. 128.).
    However, misdiagnosis can NOT successfully be argued on an intersectional (multiple) ground. Why? Because in an intersectional case discrimination is based on the victims’ two or three or more protected grounds taken together. The comparator must then be construed in a manner that she is different in multiple grounds: non-disabled Roma child compared to disabled non-Roma child, etc. Obviously, a Roma child who claims that she was misdiagnosed does not have more than one protected ground. This protected ground is her race/ethnicity. She is not in fact disabled. Disability comes into her case, because she is treated as if she was disabled. This constitutes her less favourable treatment: (even though she is not disabled) she is treated as being disabled.
    It is easy to see that if she based her claim on race and disability taken together, her whole case would collapse. Once a protected ground equals the less favourable treatment, there is in fact either no protected ground or the treatment is not less favourable. If all disabled children are referred to special school, it is irrelevant whether or not they are Roma or of majority ethnic origin.
    Indirect discrimination? Really?
    I believe that the ECtHR construction of indirect discrimination in this case – as well as in the other Roma education cases – collapses the difference between direct and indirect discrimination as understood under RED Article 2. Once the Court suggests that the apparently neutral criterion or practice (meaning: IQ tests or diagnosis) runs at least the risk of being culturally biased (para 121 and 123.), then it essentially admits that the impugned practice is biased against the Roma. In other words, it is not neutral viz. the Roma. This is the key finding, because apparently neutral means that the impugned practice shall be apparently neutral viz. the protected ground. If tests run the risk of being culturally biased, misdiagnosis cannot in fact be construed as indirect race discrimination.
    The bottom line is that in none of the Roma education cases has the Court found the justification offered by respondent States plausible. Given that in Orsus the justification relied on ethnicity based positive action measures – the only justification allowed under RED Article 5 – it will be exciting to see what if any justification the Court will allow.
    Against this backdrop, one may think that the only reason why indirect discrimination was found is political – because this form of discrimination is seen as NOT intentional. In practice, howeevr, it is the essence of judgments and not the labels attached to the kind of discrimination that matter. In essence, I am happy with the essence.
    Yours,
    Lilla Farkas
    counsel for Horváth and Kiss
    farkas.lilla@cfcf.hu

    • Alexandra Timmer permalink*
      February 8, 2013 2:57 pm

      Dear Ms. Farkas,

      Thank you so much for your reply. This is really the kind of exchange that we were hoping for when we started this blog! Your insights into how the case was actually argued are very valuable to us academics.

      I agree that the distinctions between direct and indirect discrimination are not always clear in the Court’s case law. Indeed, we often discuss this in our research team. See also Stijn’s comment on the case of X. v. Turkey: http://strasbourgobservers.com/2012/10/25/x-v-turkey-why-a-ruling-on-the-basis-of-discriminatory-effects-would-have-been-preferable/ .

      Your point that misdiagnosis = direct race discrimination is well taken.

      Best wishes and good luck with your work,
      Alexandra

  3. February 11, 2013 12:44 pm

    Dear Alexandra,

    There is one more point you raised and I forgot to reflect upon.
    It seems legitimate to me that you wonder what sort of positive action measures may the Court have had in mind. That I certainly do not know. What I know is what sort of positive action measures the applicants had in mind.
    The applicants in their submissions relied extensively on the Roma Education Fund publication, Pitfalls and Bias (available here http://www.romaeducationfund.hu/sites/default/files/publications/pitfalls-and-bias-screen_singlepages.pdf).
    This policy paper identifies two main types of positive action measures that can curtail misdiagnosis: 1. if the special school – (normal) mainstream school divide stays in place, reassessment must be regular and the tests need to be reformed to be less culturally biased, 2. if the government is prepared to shut down special schools – and thus stop the segregation of all disabled children as well as misdiagnosed Roma children – then individual assessment must serve the purpose of finding out what needs students have.
    REF is also recommending that while a decision is taken, entry testing should be suspended altogether.

    Thank you for your reference to the above Turkish case. I agree that on occasion the Court fails to distinguish properly among the different types of discrimination. What bothers me more is when it fails to see discrimination and fails to notice that if there is prejudice, then there is discrimination – even if ‘scientific’ facts challenged in the case seem correct. In Aksu v Turkey, for instance, I wondered what was scientific about an academic’s collection of widely held biased views from the ranks of the police forces. Other than these biased hearsay sources, were there any other ones to support the statement that Roma were an ethnic group closely tied to criminality? And even if there had been, would it be right to allow the spreading of racial prejudice in academic publications subsidised by the state?

    Coming from a country where the extreme right campaigns against the Roma as if they were all criminals and rallies in Gypsy settlements shouting ‘There is Gypsy crime’, I very much doubt that it is within the limits of free speech for an academic publication subsidised by the state to promote the same racist idea. The said academic is always free to publish from his own resources and under his own name whatever nonsense he wishes to put on paper.

    Best,
    Lilla

Trackbacks

  1. The burden of proof in the Horvath and Kiss v Hungary case - Public International Law
  2. Poll: Best and Worst ECtHR Judgment of 2013 | Strasbourg Observers

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