JOINT PARTLY DISSENTING OPINION OF JUDGE S JUNGWIERT, VAJI Ć , KOVLER, GYULUMYAN, JAEGER, MYJER, BERRO-LEF È VRE AND VU Č INI Ć

1. We are unable to find a violation of Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1 in the present case.

I

2. We agree with the majority on the principles laid down in paragraphs 146, 149 , 150 and 156 of the judgment. Particularly, we accept that in direct discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of an ethnic origin at a particular disadvantage compared with other persons, unless it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate.

II

3. W e d o not agree with the majority as to the application of the above principles to the case at issue and the conclusion that there has been no objective and reasonable justification for the measures applied to the applicants .

4. First of all, the applicants do not argue that their command of the Croatian language upon their enrolment in primary school was adequate – they have never objected to the Government ’ s assertion that they lacked the required level of language proficiency. ( In respect of the applicants enrolled in Macinec Primary School, the enrolment procedure included the psycho-physical appraisal of the children by a panel composed of a physician, a psychologist, a school counsellor ( pedagog ), a defectologist and a teacher, in the presence of at least one of the child ’ s parents. ) Thus we accept that the applicants did not have a sufficient command of the Croatian language to follow lessons in that language.

5. Secondly, it is accepted that decisions pertaining to the methods used to address the special needs of certain pupils belong to the sphere of social policy, in which States enjoy quite a wide margin of appreciation. Therefore , placing the applicants in separate classes as a means of addressing their special needs is not as such contrary to the Convention, either from the standpoint of Article 2 of Protocol No. 1 or from that of Article 14 of the Convention.

6. As stated in the judgment, the proportion of Roma children in the lower grades in Macinec Primary School varies from 57 % to 75%, while in Podturen Primary School it varies from 33 % to 36%. We accept that the large number of Roma pupils in the two primary schools concerned , and in particular in Macinec Primary School, was an obstacle to creating mixed classes in certain grades with a view to achieving integration among the pupils concerned. Notwithstanding these difficulties, the Roma-only classes were not established as a rule but only in cases where the percentage of Roma pupils was sufficient to form such classes.

Thus in Podturen Primary S chool, out of 47 Roma pupils only 17 were placed in a Roma - only class, while 30 were in mixed classes ( paragraph 11 of the judgment). In Macinec Primary Sc hool, there were 194 Roma pupils in 2001, 142 of whom were placed in six Roma-only classes, while 52 attended mixed classes ( paragraph 15 of the judgment).

7. The language deficits and other difficulties in the case at issue, according to school records ( paragraphs 21 to 51 of the judgment), went hand in hand with obvious lack of parental support. It cannot be denied that the slow linguistic development and progress in the applicants ’ case was to a large degree due to their very poor school attendance ( paragraphs 176 to 177 of the judgment) , which would equally have upset the majority ’ s progress in mixed classes in respect of all school subjects.

In this connection, it is to be noted that the authorities attempted to address these problems by organising regular parent-teacher meetings at class level, as well as individual parent-teacher meetings with the applicants ’ parents. They also organised visits of Roma assistants to the pupils ’ homes in order to stress the importance of regular school attendance . However, the applicants ’ parents rarely responded to such efforts . The role of the parents in these matters cannot be underestimated . Regular school attendance depends on cooperation between school authorities and the children ’ s parents, who are primarily responsible for their children. The report of the Commissioner for Human Rights also stressed that “it rests with the parents to ensure the sound learning of the language and their children ’ s regular attendance for the entire school course” (see paragraph 72 in fine of the judgment).

8. To asses s the proportionality of the measures taken , it is important to point out that t he setting and planning of the curriculum fall in principle within the competence of the Contracting States . T he regulation of educational institutions may vary in time and in place, inter alia , according to the needs and resources of the community and the distinctive features of different levels of education. Consequently, the Contracting States enjoy a certain margin of appreciation in this sphere (see Leyla Şahin v. Turkey [GC] , no. 447 7 4/98, § 154 , ECHR 2005-XI ).

9. The authorities were faced with a situation where in a small community a large number of children belonging to the Roma minority at the time of their enrolment in primary school did not have sufficient command of the language of instruction. They had to contend with numerous difficulties as a result of, inter alia , the cultural specificities of that minority. The choice between various possibilities to tackle the situation at hand entailed a difficult balancing exercise between the competing interests. On the one hand the interest of the applicants and other Roma children who did not speak the Croatian language was to acquire, as soon as possible, proficiency in the language of teaching and thus become able to follow the teaching. On the other hand the pupils, both Croatian and Roma, who did speak Croatian, had an interest in not being held back too much in their education owing to the insufficient linguistic proficiency of a very large number of other pupils.

Moreover, we stress that it may indeed be difficult to organise teaching in mixed classes where a high percentage or even a majority of pupils do not have sufficient knowledge of the language of teaching. In such a situation where a high percentage or a majority of pupils have special needs, it is obvious that the teaching h as to be adapted to their needs, particularly when they share a common language among themselves. However, this may affect the interests of other pupils who do not have such needs and whose progress may thus be impeded. I n such a situation the State authorities are confronted with the duty to ensure a fair distribution of available resources among both groups of pupils. We accept that for this reason as well their placement in the same class could be justified f rom a pedagogical point of view, as it is known that children are considered to learn best in stable surroundings , and this is also why parents are often reluctant to make their children change classes. That argument should not have been set aside without balancing also the interests of the Croatian - speaking children: the importance for Croatian - speaking pupils of being able to progress properly at school is not mentioned at all in the judgment.

10. By keeping Roma children in ordinary schools, t he Croatian authorities made the change from a separate class to a mixed class quite flexible and allowed the change to be made without formalities. Thus the majority of the applicants in the present case attended b oth Roma-only and mixed classes and shared with other pupils the same common school facilities, such as canteen and playgrounds, as well as various extracurricular and social activities (see also paragraphs 134 and 135 of the judgment).

11. The schools attended by the applicants are regular educational establishments, forming part of the system of public primary schools in Croatia. All pupils who complete any of these schools are considered as having succeeded in acquiring full primary education and they all receive a final certificate in standard form. Th os e pupils who at times or during their entire primary education attend Roma-only classes and successfully complete the final grade also receive the same standard final certificate which in no way indicates that they attended some special, separate classes. All certificates on the completion of primary education have equal standing as regards the possibility of enrolling in secondary schools or finding employment. Thus, the fact that the applicants attended Roma-only classes could not, as such, in any way have impeded or undermined their prospects of further education. All those who complete primary school have the same possibilities of reaping the benefits of their education.

12. It is thus important to stress that the applicants were at no time deprived of the right to attend school and receive an education. They were all enrolled in the primary schools concerned at the age of seven, the normal age to start mandatory primary education in Croatia. They all stayed in primary school until they reached the age of 15 and then left on their own initiative since there was no further obligation for them to attend school.

Furthermore, there was a possibility of continued education in evening classes for pupils who had not completed primary education by the age of 15 . Although the full cost of this education was borne by the State, only the third, fourth and sixth applicants made use of this opportunity and only the third applicant actually completed the evening school, while the fourth and sixth applicants, although enrolled, failed to attend classes.

13. Therefore, it is not shown in this case that the applicants were put at a particular disadvantage compared with other pupils by their placement in Roma-only classes at times during their primary education .

III

14. The present case is thus not about the situation of a minority in general but about a concrete question of education practice (in two schools) in respect of a minority insufficiently conversant with the language of instruction, and the measures taken by the domestic authorities to deal with such a situation. The case can clearly be distinguished from D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV ) and Sampanis and Others v. Greece (no. 32526/05, 5 June 2008) , as the majority is well aware. T he majority also accept ed the fact that the statistical data in the present case did not suffice to establish that there was prima facie evidence that the effect of a measure or practice was discriminatory ( paragraphs 151 to 1 52 of the judgment ). We agree that indirect discrimination may be proved without statistical evidence ( paragraph 153 of the judgment ). Yet then the facts would have to show that the effect of the practice had an adverse impact on the applicants and could not be justified on other grounds.

15. It would seem that the majority viewed the case in the first place as a means of further developing the notion of indirect discrimination in the Court ’ s jurisprudence. To be able to do so it was, however, obliged to lean on arguments outside the concrete facts, referring to the situation of the Roma population in general (see, for example, paragraphs 147, 148, 176 and 177 of the judgment). As a result, this became in some respects more a judgment on the special position of the Roma population in general than one based on the facts of the case , as the focus and scope of the case were altered and interpreted beyond the claims as lodged by the applicants before the Court. In adopting this approach, however, the majority neglected the criteria previously elaborated by the Court itself in respect of the right to education under Article 2 of Protocol No. 1 to the Convention ( paragraph 146 of the judgment) .

16. Although it is accepted that education by integration is definitely a very important concept, it is, however, to be noted that there are no general recommendations of best practices in such a situation and that States have to use their margin of appreciation to resolve such very important and concrete problems on the spot as they are the best placed for that task.

17. In addition the majority has not taken into consideration at all that one of the rights of a minority consists in “preserving diversity” (see paragraph 148 of the judgment) and that separation is therefore not always considered to be harmful, especially when accompanied – as in the given situation – by various social activities and measures organi s ed in the common school.

IV

18. We are satisfied that in the present case , as pointed out by the Constitutional Court, it was not shown that the allegedly different treatment of the applicants was based on their ethnic origin or any other “suspect” grounds, but rather exclusively on their insufficient command of the language , which means on pedagogical grounds. In such circumstances a wider margin of appreciation is allowed to the State authorities in employing methods of addressing the applicants ’ learning difficulties. Once it has been established that the applicants lacked sufficient command of the Croatian language, the choice of means to address that problem lay with the State authorities. Therefore, and regard being had to the margin of appreciation afforded to the national authorities in the field of education (see, mutatis mutandis , Sampanis and Others , cited above, § 92 in fine ), we consider that the placement of the applicants in Roma-only classes at times during their primary education in the circumstances of the present case had a legitimate aim pursued by acceptable means for a limited period without discernable alternatives at hand. In other words, there existed an objective and reasonable justification .

V

19. We would also like to stress that in a situation like the present one in which the Court is overruling a well - reasoned judgment by a Constitutional Court, as well as a unanimous judgment of one of its Chambers , by adopting a Grand Chamber judgment by a nine to eight vote, it should have presented more convincing arguments to justify its decision. In addition, it would have been useful if the Court had been willing to offer more practical guidance on how to develop and apply the notion of indirect discrimination. As it stands, without any clear indications on the matter , it could appear that the majority simply used its own discretion to replace a decision of the highest national court with its own. In so doing, the Court runs the risk of be ing told that it took upon itself the task of the national courts . Particularly so in a situation where the Constitutional Court ’ s reasoning was based on the principles of the Convention and where its indications to the domestic authorities were clear. Thus, the present example well illustrates that when it comes to cases where the Court declares that a certain margin of appreciation is to be left to the States, it should be particularly careful not to overstep its role , e specially when a large number of judges in the C ourt have expressed their support for the Constitutional Court ’ s approach.

Be that as it may, it will certainly not be easy for the respondent State or any other State party to the Convention faced with schooling problems in relation to minority groups to follow the present judgment.

APPENDIX

LIST OF APPLICANTS

N ame

D ate of birth

R esidence

1.

Stjepan Oršuš

22 December 1991

Orehovica

2.

Mirjana Oršuš

30 September 1990

Podturen

3.

Gordan Oršuš

16 June 1988

Podturen

4.

Dejan Balog

10 November 1990

Podturen

5.

Siniša Balog

25 January 1993

Podturen

6.

Manuela Kalanjoš

12 February 1990

Podturen

7.

Josip Oršuš

25 February 1993

Podturen

8.

Biljana Oršuš

20 April 1990

Podturen

9.

Smiljana Oršuš

6 April 1992

Podturen

10.

Branko Oršuš

10 March 1990

Podturen

11.

Jasmin Bogdan

11 May 1990

Trnovec

12.

Josip Bogdan

13 September 1991

Trnovec

13.

Dijana Oršuš

20 January 1994

Trnovec

14.

Dejan Oršuš

2 August 1991

Trnovec

15.

Danijela Kalanjoš

7 October 1993

Trnovec