The legacy of D.H v. Czech Republic: A discussion with James Goldston

“After decades of the Law being seen as something to fear, D.H demonstrated that the Law can be used to grant justice to a community that has been deprived of it for so long”

James Goldston, Open Society Justice Initiative

Over ten years later, the case of D.H v Czech Republic (D.H) continues to be of immense importance. The case dealt with the Czech government’s quasi-automatic practice of placing Roma primary school children into sub-standard “special schools”, regardless of the academic ability of the child.  In comparison to mainstream primary schools, “special schools” (renamed “practical schools”) were found to lack resources and taught a far inferior curriculum. In a landmark ruling, the European Court of Human Rights (ECtHR) held that Czechia had infringed the Convention rights of 18 Roma school children; specifically their right to an education (Art. 2 of Protocol 1) had been denied on account of their Roma ethnicity (Art. 14).

The applicants’ rights had been vindicated and reinstated by the judgment but, as the Open Society Justice Initiative (OSJI) and European Roma Rights Centre (ERRC) intended, the selection of the case to be litigated at the ECtHR was for a greater cause. In what is known as ‘strategic litigation’, it was hoped that D.H would become a vehicle for change in the Czech education system and maybe even impact Czech and European societies where Roma segregation in education was still being reported. The question is: has the strategic litigation of D.H been impactful and what kind of legacy has been left 11 years later?

In March 2018, I was fortunate enough to discuss the legacy of D.H with James A. Goldston, Executive Director of the OSJI and one of the former Lead Counsels to the D.H applicants:

Fil Sys: A simple question but not a simple answer – what do you personally think was the greatest legacy of D.H?

James Goldston: It’s a very good question. There are two principal legacies: the legal consequences of the case and the sense of possibility that the judgement caused amongst affected children. Legally, the judgement was revolutionary and fundamentally changed the legal discourse around discrimination and equality in Europe. For decades, Art. 14 of the European Convention of Human Rights (ECHR), on the prohibition of discrimination, had been on the books. However, the application of Art. 14 to a case of discrimination of this kind was new.

Previously, there was one case based on the prohibition of discrimination (Art. 14) that dealt with police violence against Roma. D.H was original because it was the first time that the ECtHR had applied Art. 14 to a specific area of public life beyond police activity. The judgement was also important because it established that indirect discrimination was capable of breaching Art. 14, agreed that statistics could be used as evidence in support of a finding of a violation and held that the burden of proof could be switched once a prima facie case of discrimination had been demonstrated in court. Together, this reasoning demanded that the Czech government give a non-discriminatory reason explaining, which was not accepted, to why statistics showed a disproportionate placement of Roma children in “special schools”. The government could not satisfy this burden. This was significant because it showed that the Court was prepared to deal with this type of discrimination which is so insidious and pervasive.

With respect to the victims of this type of discrimination and segregation, the court sent a powerful signal. It may take time and it may be frustrating, but there is now a legal remedy for this kind of segregation and discrimination which is profoundly denying a basic education.

Filip Sys: In 2008, the Czech Supreme Court heard the case of Jaroslav Suchý. It held that if the disproportionate number of Roma children in “special schools” does not meet at least 50%, it cannot be considered evidence of indirect discrimination.

Bearing in mind that the ECtHR stated that the Czech government could “use its own means” to reform the national education system, do you think that the wording from the Court was unhelpful and are there fears that the D.H ruling has been diluted? 

James Goldston: I don’t think that the Czech case you cite, quite frankly, honours the true spirit of D.H, nor do I think it is what the ECtHR intended. I don’t believe that it would be appropriate to interpret the judgement in D.H as mandating a limitation that you describe in the Jaroslav Suchý case.

The true spirit of the D.H judgement has been demonstrated in other decisions that have been handed down by the ECtHR. Other cases of educational discrimination have built upon the doctrines laid down in D.H. From Hungary to Greece and Croatia, cases have made clear that the Court and the Committee of Ministers are not only receiving and executing similar judgments, they are determined to make clear that this sort of widespread discrimination has no place in Europe. Nonetheless, it is going to take some time to see real changes in the education systems of a number of countries.

Will it be rapid? Will it be easy? Absolutely not. But I do think, I have seen evidence to the fact, that many Roma parents and children have seen D.H as a source of inspiration. After decades of the law being seen as something to fear, D.H demonstrated that the law can be used to grant justice to a community that has been deprived of it for so long. A lot of people have felt this way and we have seen community organising among Roma increase in the past decade. We are seeing evidence that people are finding D.H a useful platform to demand better educational rights for their children.

Filip Sys: Although there is optimism surrounding the legacy of D.H, there have been setbacks and there exists significant opposition from politicians, teachers’ unions, activists and, most surprisingly, parts of the Roma community. It could be seen that there is a concerted effort to undermine D.H from above and below. Does it sadden you to see this much backlash in Czechia after such a significant judgement?

James Goldston: Whenever a legal decision challenges unequal power relations, it is natural that the establishment will push back. There are people whose lives, jobs and economic security are affected by such judgments. In order to foster real change in society, it may be necessary for some to change their work practices and that can be threatening. For example, it was not surprising that some special education administrators or pedagogues came out in opposition to D.H because of the potential consequences for their work.

Of course, not all educators had this attitude because some special education groups, lobbies and unions have fully supported the changes. It is important to recognise that, when change of this systemic kind is undertaken, the needs and interests of all people who are going to be affected (including those responsible for implementation) should be considered. However, fundamentally, the educational rights of Roma children cannot be compromised and the ECtHR’s judgments should be fully implemented.

Czechia is only one country in Europe which is experiencing resistance when it comes to the protection of human rights, specifically concerning minorities. This is something which requires determined action on the part of a range of actors to resist and campaign for change.

Filip Sys: When looking at the OSJI’s “Strategic Litigation Impacts: Roma School Desegregation”, it was noticeable that a number of Roma mothers were approached about the impact of D.H on educational segregation. Their attitude was sad, not because they did not have the desire to send their children to adequate schools, but because they saw the judgment as futile when faced with discrimination in employment after formal education.

Is there any evidence to suggest the D.H judgement has stirred a consciousness in the Roma community?

James Goldston: I have seen evidence of a rising consciousness when speaking with Roma children, parents and others not only in Czechia, but elsewhere in Europe. Of course this is not universal, but I have seen dozens, if not hundreds, in the Roma community discussing D.H and the issues it raised. There is also evidence to suggest that Roma communities were inspired by the ECtHR judgement into further community action.

However, a judgement can only do so much. Strategic litigation is a tool – the question is what is made of it. In affected communities, it is important that support and resources are employed, in order for communities to use this ‘tool’ for their own advocacy. That is something that the Open Society is very committed to.

Filip Sys: It is very encouraging to hear that Roma communities are mobilising since D.H. It is, nonetheless, troubling to read reports from Romea News and other sources which describe discrimination persisting and segregation within the Czech schooling system continuing. Therefore, in your opinion, has the success in the courtroom really translated into success on the ground?

James Goldston: We know that discrimination has persisted. In part, spurred on by the judgement, the Czech government – specifically the Inspectorate of Education and the Ombudsperson – has now begun to collect ethnic data which can be used to demonstrate the extent of educational opportunity.  This is important but, sadly, the evidence suggests that the situation has not improved as far and as quickly as was initially hoped.

We know that today Roma children are still far more likely to end up in schools or classes which have a substandard curriculum. “Special schools” in name have been abolished but we know that the reality is that Roma children continue to be disproportionately assigned to schools and classes where the education is not up to the standard of others. Although there is much needed space for progress, I think that most people believe that the levels of segregation are not at the same level when the case of D.H was brought to the ECtHR. There is still room for much improvement. 

Filip Sys: Could you clarify some of the positive effects of collecting ethnic data on the over-placement of Roma in “special schools”?

James Goldston: Sure. The most clear and positive benefit is that people can see quite clearly, and to what extent, discrimination exists. If we do not collect data then we simply don’t know. If we did not have ethnic data, we would all be at the level of argument, counter-arguments, allegations and rebuttal. Data speaks for itself and the most important thing that data gives us is that it is an objective tool to monitor compliance with judgements like D.H.

On the other hand, ethnic data raises all kinds of concerns that need to be dealt with sensitively, given the misuse of such data in European history. That history must be borne in mind as we develop policies for gathering and using ethnic data. But, it would be wrong to allow that sad history to prevent us from using ethnic data today with appropriate safeguards. European Law is completely clear that ethnic data can and should be used for the purposes of pursuing public interest goals like anti-discrimination, so long as we take care to ensure the protection of individuals’ identity and collectivise and anonymise data. Czechia is currently taking positive steps in this regard, though more needs to be done.

Filip Sys: Considering ethnic data, I wrote a blog post on the origins of certain Roma settlements (or ‘ghettos’). It maybe be interesting to analyse whether D.H can penetrate ghetto areas where Roma, for decades, have been so aggressively marginalised. Of course, there are schools in ghetto areas, which will probably contain 100% Roma children, so how can the judgment improve school standards in Roma areas? Is it even possible?

James Goldston: I think it is absolutely possible. There are obvious linkages between educational segregation and residential segregation. Ultimately the test is such: is everyone afforded an equal opportunity to get a decent education?

The judgment is important because it articulates a principle – the principle of non-discrimination and educational opportunity. However, it does not prescribe a particular means of getting to that objective and, as we have seen in different places around the world; there are a variety of means of addressing educational segregation and discrimination. In the Czechia, the OSJI and others have been involved in providing comparative resources to, for example, the Ministry of Education and others that have been willing to engage. It is certainly possible to redress this sort of segregation and discrimination but it will take time and resources.

This is not easy and results will not necessarily happen immediately. But, reforms are essential because every year that a child is subjected to inferior education, there will be damaging results for the individual child, to his or her family and their community at large.

Filip Sys: It seems from what you are saying that the Czech government has been slow in implementing the reforms needed to give effect to the D.H judgement. Do you think the slow implementation of D.H by the Czech government has been picked up by the EU Commission because of its recent proceedings against Czechia?

James Goldston: That seems to be the case because the EU Commission has launched infringement proceedings against the Czech government on these issues. We are awaiting the outcome of those proceedings but we know that the Commission does not act unless it has pretty substantial evidence of a potential violation of EU Law. Compliance with the Racial Equality Directive is the subject of the proceedings and it is clear that the EU Commission is watching the Czech government very closely. Currently, they are in dialogue. Our hope is that the EU Commission action prompts swifter implementation of D.H than we have seen to date.

Filip Sys: Thank you very much Mr Goldston, your insight on the legacy of D.H has been invaluable. The implementation of D.H and the removal of educational segregation in Czechia is of paramount importance and I hope the Czech government will heed your and our calls for reform.

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