May 17, 2023
By Patrick Leisure
The Szolcsán v. Hungary judgment is the most recent iteration of the European Court of Human Rights (ECtHR, the Court) strongly confronting segregation in schools and discrimination against the Roma people more generally. Unanimously finding a violation of Article 14 together with Article 2 of Additional Protocol 1, the judgment is similar to antecedent cases concerning discrimination against Roma pupils (and their parents) in education (see recent excellent posts here and here by Merel Vrancken). However, the judgment is unique in two respects. First, it is the first case to consider alleged discrimination regarding transfer to an integrated school as a specific remedy for an individual suffering from a discriminatory education. Second, the judgment takes a strong general stance regarding Article 46 measures, stating that Hungary must develop a policy “against segregation in education and take steps to eliminate it…” (para. 69). In this post, I discuss these two aspects of the case in more detail, noting a few critiques of the judgment’s reasoning and a word of caution.
The applicant in the case is of Roma ethnic origin and attended the JM school in Piliscsaba throughout his entire primary education. The JM school was almost exclusively attended by Roma children despite the fact that Roma comprise approximately 4% of the population in Piliscsaba (para. 5). Moreover, while the local municipality had recognized that the JM school was racially segregated and had adopted a resolution to desegregate, no concrete desegregation plan was implemented. In light of the segregated nature of the school and the fact that the applicant had a slight hearing impairment, he submitted an application to transfer to the integrated DG school. This school is in the same educational district (but not the same catchment area) as the JM school and is approximately a 5-minute bus ride away from the applicant’s home. Two other schools provide ‘specific curricula’ in Piliscsaba, a Catholic school and a German minority school (para. 7).
The headmaster of the DG school rejected the applicant’s transfer request on the grounds that he did not live in the DG school’s catchment area (para. 11). The applicant’s appeal to this decision argued that his transfer request was denied due to his Roma origin, and this denial contravened his right to a racially inclusive education. However, the appeal was also dismissed by the educational district on the grounds that it was in the applicant’s best interest to attend the school geographically closest to him. In response to a request for judicial review, the Budapest Court held that the headmaster of the DG school had acted within his discretion and that location rather than the applicant’s Roma origin had been the decisive factor in the headmaster’s decision. The Kúria dismissed the applicant’s request for review, and the applicant’s constitutional complaint was denied. The European Roma Rights Centre represented the applicant in both domestic proceedings and before the ECtHR.
The merits section of the judgment is relatively short at only 14 paragraphs long. After confirming that the applicant had exhausted domestic remedies by choosing the legal remedy that best addressed their essential grievance, the Court addressed the two primary questions presented in the case: first, the refusal to transfer the applicant from JM school to DG school; second, the segregation that the applicant experienced throughout his primary school years by attending an almost exclusively Roma school (para. 49).
The applicant put forward two primary arguments in respect of the transfer denial. First, he argued that the refusal to transfer him from the racially segregated JM school to the non-segregated DG school did not meet Hungary’s positive obligations under the Convention and violated his ‘right to a racially inclusive education’ (para. 36). Second, the applicant argued that the refusal to transfer him to the DG school was racially discriminatory (para. 37). The Court’s judgment largely sidestepped the first of these arguments, dealing primarily with the second.
Noting that under domestic law the ultimate decision on a transfer request rests with the headmaster, the Court viewed the reasons for denial of the applicant’s transfer request given by the educational authorities and the reviewing courts with an air of suspicion. While the applicant did live outside the DG school’s catchment area, the arguments put forward for why it was in the best interest for the applicant to go to the school geographically closest to him were not persuasive for the Court. In this context, the Court noted that 27 students from Piliscsaba were already attending the DG school, and that daily travel for the applicant to attend DG would be only five minutes by bus (para. 51). Thus, at least for other students, the place of residence had not proved decisive in the transfer decision. Nonetheless, lacking further evidence, the Court could not come to a firm conclusion on whether the applicant’s Roma origin was the reason for the denial (para. 51).
Second, the Court addressed the segregation question specific to the JM school. From a factual perspective, the Court noted that it was uncontested that the school was almost exclusively attended by Roma pupils and that the curriculum taught at the JM school was of poor quality (para. 53). Moreover, the Court was unable to accept that the reason for the segregation was purely demographic, as the Kúria had held (para. 54). Given these facts, the Court concluded that the government was under a positive obligation to correct the segregated conditions and to ‘avoid the perpetuation and discrimination that resulted from the over-representation of Roma pupils at the Jókai Mór school’ (para. 55). In this vein, the Court was not persuaded that Hungary had fulfilled its positive obligation by purportedly offering the applicant the opportunity of transferring to the German or Catholic school in Piliscsaba (para. 56). Based on conflicting information in the casefile, the Court was unable to be certain on whether these schools were in fact obliged to enrol the applicant or not. In any case, the Court noted that Hungary had not refuted the applicant’s claim that the German and Catholic schools were ill-equipped to accommodate a pupil with a mild hearing impairment (para. 56).
In a pithy judgment reaffirming its prior case law, the Court held that the discrimination suffered by the applicant was not justified by any legitimate aim (para. 58). Likewise, the state did not fulfil the requirement of ‘special vigilance and a vigorous reaction’ (para. 46) in addressing and rectifying the discriminatory situation to which the applicant was subjected. In summary, the Court found a violation regarding the segregation that the applicant experienced in the JM school but could not come to a concrete conclusion on the transfer decision.
One of the primary issues in Szolcsán was the headmaster of DG’s denial of the applicant’s transfer request, and whether the real reason was discriminatory, i.e. due to the applicant’s Roma origin. Yet, the applicant argued not only that the transfer refusal was discriminatory by itself, but also that the refusal to transfer him from the segregated JM school to the integrated DG school failed to comply with the Hungarian authorities’ positive obligation under the Convention and violated his individual right to a racially inclusive education. The case-law of the Court regarding states’ positive obligations in Roma discrimination cases puts forward two pertinent factors. First, the Court has consistently held that Roma people are ‘a specific type of disadvantaged and vulnerable minority’ that require ‘special protection’ (D.H. v. Czech Republic, para. 182). Second, the Court states that once an applicant proves that they were educated in segregated conditions, a ‘positive obligation on the State to take steps to correct’ arises (Szolcsán, para. 55, citing Horváth and Kiss v. Hungary and X and Others v. Albania). Thus, the Hungarian authorities’ positive obligations, as argued by the applicant in relation to the transfer question, could have been influenced by the Court’s finding in the segregation question at the JM school. However, the Court deals with the transfer question first, and only then looks at the segregation issue. By inversing the order in which it answers the questions, in my opinion, the Court puts the cart before the horse. The Court should have dealt with the segregation question in the JM school first, and then analysed the transfer decision in light of its findings therein.
As stated above, the Court sidesteps the applicant’s argument that the transfer request should have been allowed due to the positive obligation of the state to correct the applicant’s segregated situation. Rather, the Court only addresses the question of whether the transfer denial was racially motivated and finds that it cannot be proven. By sidestepping this question, the Court seems to indicate that while transfer could be a remedy for segregation, the Hungarian authorities were under no positive obligation to accept a request for transfer to a specific school as an individual positive remedy for segregation.
In my view, the Court should have addressed the transfer question more clearly and directly. By sidestepping one of the applicant’s primary arguments, as well as the Hungarian government’s response, the Court missed an opportunity to clarify the analysis related to positive obligations on the state in the context of individuals experiencing segregated education. Although the Court stated in X and Others v. Albania that ‘it is not for the Court to indicate the specific measures to be undertaken to remedy a school segregation situation’ (para. 86), I think the Court should have addressed the applicant’s arguments regarding the states’ positive obligations once discrimination is proven, as well as the right to a racially inclusive education. While I agree with the outcome of the case, one is left with a somewhat murky understanding of the Court’s view of positive obligations regarding individual remedies for those experiencing a segregated education. After Szolcsán, are individual positive remedies to segregated education entirely discretionary, or might the positive obligation on the state to ameliorate discriminatory situations for individual Roma applicants in education still carry some weight?
The Court takes an interesting, and I would say quite a strong, stance in the final paragraph of the judgment concerning measures to be taken under Article 46. Citing Çam v. Turkey, a case concerning a blind musician’s access to a music school, the Court repeats a statement it has made in the past (Elmazova v. North Macedonia, para. 89) privileging inclusive education as the best way to guarantee universality and non-discrimination in education (although some judges have disagreed with this as a universal stance, see concurring opinion of Judge Wojtyczek in G.L. v. Italy). Then, the Court not only states measures to be taken concerning the desegregation of the JM school, but also a general measure ‘to develop a policy against segregation in education and take steps to eliminate it as recommended by the ECRI’ (European Commission against Racism and Intolerance, Szolcsán para. 69). To my knowledge, this is the first time the Court has required, under Article 46, that the state develop a country-wide policy against segregation in education. It represents the Court taking a strong stance on attempting to ‘break the circle of marginalization’ in education more generally rather than only in one specific school.
The broad statement, applying to education across Hungary, brings to mind Judge Jungwiert’s dissent in D.H., where he stated that the case ‘represents a new development in the Court’s case-law, as it set about evaluating and criticising a country’s entire education system’ (D.H. v. Czech Republic, para. 2 of dissent). But this argument was not persuasive to the majority of judges in the D.H. case, nor would it be persuasive to me here. The measure appears particularly warranted given the sobering statistic presented by the third-party intervenor in the case that ‘45% of Roma children in Hungary attend Roma-only schools or classes’, and that it is a country-wide problem (para. 42).
It will be interesting to see what the result of this statement is. As the applicant stated, it does not appear that the Hungarian government has been receptive to remedying the situation of Roma in education, with the Prime Minister saying that paying Roma families damages for segregated education ‘violates the Hungarian people’s sense of justice’ (Szolcsán, para. 28). In addition, recent scholarship suggests that the populist challenge to the ECtHR may be a real threat to the Court’s social legitimacy. Because the ideology of the populist project often rejects minority rights, pluralism, and the institutions that protect them, the domestic implementation of the desegregation policy that the Court requires in Szolcsán may come up against pushback, or worse. As an additional consideration, education experts in Hungary have noted that the rise of populist regimes in Europe may have a big impact on the future of schools and education in central eastern European countries. Thus, while taking a strong stance against segregation in education is to be welcomed and makes up a now consistent and robust jurisprudence, it is to be hoped that populist leaders will not utilize shallow rhetoric in an attempt to undermine the legitimacy of schooling judgments or the Court more generally, as has been the case elsewhere. While I entirely agree with the Court’s strong stance on broadly combatting discrimination in education, schooling may be a particularly emotive and significant issue in local communities. Schooling issues have often stood at the threshold between European supervision and the subsidiarity doctrine, with national authorities in relation to schools at times privileged as ‘better placed than an international court to evaluate local needs and conditions’ (Osmanoglu v. Switzerland, para 87) and other times subject to strict European scrutiny, such as with respect to safety in schooling. The Court should stand by its anti-discrimination jurisprudence and play its rightful judicial role therein, including with broad anti-segregation measures. But I would caution that there may be a political risk inherent in the legal dialogue.
The recent Szolcsán judgment is illustrative of the Court staying the course it took 16 years ago in D.H. and has consistently upheld, and strengthened, since (although it should be noted that the decision is not yet final under Article 44 of the Convention). However, the equivocal treatment of individual positive remedies to segregation, namely transfer to another school, leaves much to be desired. By sidestepping one of the applicant’s main arguments, the Court missed an opportunity to clarify the analysis regarding individuals’ right to a racially inclusive education and the positive obligations on the state in the context of individuals experiencing a segregated education. In the end, the applicant spent some seven years in a nearly entirely Roma primary school. While the applicant is now 18 years old and presumably out of primary education, would it have been going too far for the Court to consider fully what the individual applicant really wanted in the case, i.e. to attend a non-segregated school? Finally, the Court has taken a strong stance regarding Article 46 measures to be undertaken in Hungary following Szolcsán, including developing a policy to eliminate segregation in education, which continues to be a significant problem for Roma children across the country. Time will tell if this bark in fact has any bite.