Published on 19 April 2022

FIFTH SECTION

Application no. 11746/16 Jaroslav SUCHÝ against the Czech Republic lodged on 26 February 2016 communicated on 28 March 2022

SUBJECT MATTER OF THE CASE

The application concerns the enrolment of the applicant, who is a Roma born in 1978 and who was placed in institutional care in 1980, in a special school intended for children with mental deficiencies and his subsequent education therein between 1985 and 1995 (Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1).

In 2008, the applicant filed an action referring to the Court’s judgment in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV) and seeking an apology and non-pecuniary damages for having been subjected to an indirect discrimination based on his Roma origin. The courts dismissed the action, concluding that the applicant’s placement in a special school, based on his repeated testing and monitoring, was appropriate and did not bear the same substantial elements as the general discriminatory practice. The applicant’s constitutional appeal was dismissed by the Constitutional Court’s judgment no. III. ÚS 1136/13 of 12 August 2015 served on his lawyer on 27 August 2015.

QUESTIONS TO THE PARTIES

1. Is the applicant’s complaint compatible with the provisions of the Convention ratione temporis, in view of the fact that the placement of the applicant in a special school and a large part of his education therein occurred before the Convention’s entry into force with regard to the respondent State?

2. Given that the applicant sought judicial protection of his rights enshrined in the Convention within the proceedings for protection of his “personality rights” (compare with Maděrová v. the Czech Republic (dec.)[CTE], no. 32812/13, § 41, 8 June 2021) , in which – as he points out – the Constitutional Court did not find it necessary to address the statute of limitation issue and dealt with the substance of the claims made, was the running of the six-month time-limit under Article 35 § 1 of the Convention, as in force at the relevant time, triggered by the judgment issued in those proceedings by the Constitutional Court on 12 August 2015?

3. Has there been a violation of Article 14 of the Convention taken together with Article 2 of Protocol No. 1? In particular, was the applicant kept in a special school as a result of a practice having disproportionately adverse effects on children of Roma origin (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, ECHR 2007 ‑ IV)?

4. Was the argument used by the Constitutional Court to exclude the discrimination against the applicant, i.e. the fact that the applicant had not lived in his family and community but had been subject to institutional care, compatible with the Court’s case-law according to which children placed in institutional care find themselves in a situation of particular vulnerability? Are there any arguments showing that Roma children subject to institutional care are less likely to be victims of discrimination, in comparison with Roma children brought up in their families? At the time of the events, what was the proportion of Roma children subject to institutional care?