Note: following a helpful comment, this post has been edited to correct a mistake on my behalf.
In this blog entry I would like to focus on the Court’s interpretation of the concept ’statistically relevant’. In Oršuš and others v. Croatia, the Court held the following regarding the statistical evidence adduced by the applicants:
“These statistics demonstrate that only in the Macinec Primary School did a majority of Roma pupils attend a Roma-only class, while in the 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.” (§ 152, emphasis added)
The use of statistics to prove the existence of indirect discrimination was introduced in D.H. and others v. The Czech Republic (app. no. 57325/00) and used afterwards in Sampanis and others v. Greece (app. no. 32526/05). This introduction can only be applauded and was a major step forward for the protection of minorities, since it made proving indirect discrimination more feasible.
What is regrettable is the simple conception of statistical evidence the Court uses in Oršuš .