DISSENTING OPINION OF JUDGE CABRAL BARRETO

(Translation)

To my great regret, I am unable to agree with the majority ’ s finding that there has been no violation of Article 14 of the Convention, taken together with Article 2 of Protocol No. 1.

I come to entirely the opposite conclusion for reasons which are set out below.

But I would first like to make two observations.

1. Firstly, I acknowledge the efforts made by the Czech Republic to integrate the Roma into society and to put an end to discrimination and social exclusion by incorporating the European Directive on equality of treatment (see paragraph 27 of the judgment).

Secondly, I do not wish and, indeed, am unable to make any value judgment on the conditions of life for the Roma in the Czech Republic or, in particular, to express any view on whether they are better or worse than in other member States.

The Court ’ s role, and my own role in the present circumstances, is confined to examining and deciding whether there has been a violation of the Convention as a result of the applicants ’ treatment by the respondent State in the present case.

2. The factual position is straightforward enough: during the period from 1996 to 1999 the applicants were placed in “special schools” in Ostrava .

The placements were made after child psychology tests and, in some cases, with the permission or consent of the parents.

Section 31(1) of Law no. 29/1984 provided that special schools were intended for children with learning disabilities that prevented them from following the curricula in ordinary primary schools or in specialised primary schools intended for children suffering from sensory impairment, illness or disability (see paragraph 20 of the judgment).

As the Government expressly recognised in their report lodged on 1 April 1999 under Article 25 § 1 of the Framework Convention for the Protection of National Minorities, which is cited at paragraph 26 of the judgment, that at the time (which coincides with the relevant period in the instant case): “Romany children with average or above-average intellect [we]re often placed in such schools on the basis of results of psychological tests (this happen[ed] always with the consent of the parents). These tests [we]re conceived for the majority population and do not take Romany specifics into consideration”.

At the time, in some “specialised schools” Romany pupils made up between 80% and 90% of the total number of pupils.

In my opinion, this constitutes an express acknowledgement by the Czech State of the discriminatory practices complained of by the applicants.

During the period from 1996 to 1999 the applicants were not placed in schools for the mentally disabled because of mental disability; on the contrary, they possessed “average or above-average intellect”.

3. The judgment raises first and foremost points that warrant detailed examination, namely that the applicants were selected for placement in the schools by tests and that the placements were made with parental consent.

The Government, however, acknowledged in the 1999 report, which is cited in the judgment, that the tests did not take Romany specifics into consideration.

As to parental consent, I would refer to ECRI ’ s Third Report on the Czech Republic, which was made public on 8 June 2004: “As far as the other element required in order to send a child to a special school – the consent of a parent or legal guardian of the child – parents making such decisions continue to lack information concerning the long-term negative consequences of sending their children to such schools.” (see paragraph 108 of the report.)

In practice, pupils educated in a “special school” saw their prospects of pursuing their studies in a secondary school reduced to nil.

4. I agree with the majority ’ s statement of the position in paragraph 47: “...with regard to the States ’ margin of appreciation in the education sphere ... the States cannot be prohibited from setting up different types of school for children with difficulties or implementing special educational programmes to respond to special needs”.

I would even add: the State should take into account pupils who, because of their special circumstances, require a specific form of education.

These pupils who, for various reasons – whether cultural, linguistic or other – find it difficult to pursue a normal school education should be entitled to expect the State to take positive measures to compensate for their handicap and to afford them a means of resuming the normal curriculum.

However, such measures should never result in the handicap being increased as a result of the pupil being placed in a school for children with learning disabilities.

The Court stated in the Thlimmenos v. Greece judgment of 6 April 2000 , ( Reports of Judgments and Decisions 2000-IV, p. 317, § 44) :

“The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification... However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.” (see also, Postiand Rahko , judgment of 24 September 2002, Reports 2002-VII, p. 351, § 82).

5. In the applicants ’ situation, compliance with Article 14 of the Convention required measures to be taken to make up for the differences. However, the Czech State ’ s “different treatment” of the applicants served, in my view, to aggravate the differences between them and the pupils attending the ordinary schools. It seems to me that the measure is made all the more unjust and incomprehensible in terms of cognitive ability by the fact that the majority of these pupils were average or above-average when compared to pupils attending the ordinary schools. The Czech State thereby prevented them from achieving their cognitive and intellectual potential, as they possessed the requisite capacities.

It is not for me to stay what type of positive measures the applicants ’ situation called for, but what is certain is that enrolling them in schools designed and intended for children with learning disabilities does not appear to be an appropriate means of resolving these children ’ s difficulties, which are of an entirely different order from the cognitive problems characteristic of pupils in such schools.

I note that the Czech State is now changing its position, is preparing to introduce anti-discrimination tools and regards “the practice of referring large numbers of Roma children to special schools as untenable”.

The Government wish to replace “special schools” with “special primary schools” in order to provide the children targeted assistance in overcoming their sociocultural handicap (see paragraph 27 of the judgment).

I very much hope that this new system will offer prospects of civic integration and social and intellectual development in accordance with the principles which all children and their parents must be entitled to expect from the States in the education sphere. I would, however, like to refer to one of ECRI ’ s recommendations in the aforementioned report: “ECRI recommends that the Czech authorities ensure that the new School Act does not create a new form of separated education for Roma children”.

6. Lastly, the expression “ all different, all equal ” should continue to be the guiding principle in the unceasing fight against discrimination in compliance with all the aspects of Article 14 of the Convention, a provision which covers both negative discrimination and, as in the present case, positive discrimination.

A P P E N D I X

LIST OF THE APPLIC ANTS

1. Ms D.H. is a Czech national of Roma origin who was born in 1989 and lives in Ostrava- Přívoz ;

2. Ms S.H. is a Czech national of Roma origin who was born in 1991 and lives in Ostrava- Přívoz ;

3. Mr L.B. is a Czech national of Roma origin who was born in 1985 and lives in Ostrava- Fifejdy ;

4. Mr M.P. is a Czech national of Roma origin who was born in 1991 and lives in Ostrava- Přívoz ;

5. Mr J.M. is a Czech national of Roma origin who was born in 1988 and lives in Ostrava- Radvanice ;

6. Ms N.P. is a Czech national of Roma origin who was born in 1989 and lives in Ostrava ;

7. Ms D.B. is a Czech national of Roma origin who was born in 1988 and lives in Ostrava- Heřmanice ;

8. Ms A.B. is a Czech national of Roma origin who was born in 1989 and lives in Ostrava- Heřmanice ;

9. Mr R.S. is a Czech national of Roma origin who was born in 1985 and lives in Ostrava- Kunčičky ;

10. Ms K.R. is a Czech national of Roma origin who was born in 1989 and lives in Ostrava- Mariánské Hory ;

11. Ms Z.V. is a Czech national of Roma origin who was born in 1990 and lives in Ostrava- Hrušov ;

12. Ms H.K. is a Czech national of Roma origin who was born in 1990 and lives in Ostrava- Vítkovice ;

13. Mr P.D. is a Czech national of Roma origin who was born in 1991 and lives in Ostrava ;

14. Ms M.P. is a Czech national of Roma origin who was born in 1990 and lives in Ostrava- Hrušov ;

15. Ms D.M. is a Czech national of Roma origin who was born in 1991 and lives in Ostrava- Hrušov ;

16. Ms M.B. is a Czech national of Roma origin who was born in 1991 and lives in Ostrava 1;

17. Ms K.D. is a Czech national of Roma origin who was born in 1991 and lives in Ostrava- Hrušov ;

18. Ms V.Š. is a Czech national of Roma origin who was born in 1990 and lives in Ostrava- Vítkovice .

[1] 1 . Th e legislation ( Law no. 561/2004) was passed on 24 September 2004 and entered into force on 1 January 2005 .