DISSENTING OPINION OF JUDGE ZUPANČIČ

I agree entirely with the comprehensive dissenting opinion of Judge Karel Jungwiert. I wish only to add the following.

As the majority explicitly, and implicitly elsewhere in the judgment, admitted in paragraphs 198 and 205, the Czech Republic is the only Contracting State which has in fact tackled the special- educational troubles of Roma children. It then borders on the absurd to find the Czech Republic in violation of anti-discrimination principles. In other words, this “violation” would never have happened had the respondent State approach ed the problem with benign neglect.

No amount of politically charged argumentation can hide the obvious fact that the Court in this case has been brought into play for ulterior purposes, which have little to do with the special education of Roma children in the Czech Republic.

The future will show what specific purpose this precedent will serve.

DISSENTING OPINION OF JUDGE JUNGWIERT

(Translation)

1. I strongly disagree with the majority ’ s finding in the present case of a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1.

While I am able to agree to an extent with the formulation of the relevant principles under Article 14 in the judgment, I cannot accept the manner in which the majority have applied those principles in the instant case.

2. Before specifying all the matters with which I disagree, I would like to put this judgment into a more general perspective.

It represents a new development in the Court ’ s case-law, as it set about evaluating and criticising a country ’ s entire education system.

However authoritative the precedents cited at paragraphs 175 to 181 of the judgment may be, in practice they have very little in common with the instant case other perhaps than the Roma origin of the applicants in most of the cases (for instance in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005-VII) and Buckley v. the United Kingdom (25 September 1996, Reports of Judgments and Decisions 1996 ‑ IV) , among others).

3. In my opinion for the principles to be applied correctly requires, firstly, a sound knowledge of the facts and also of the circumstances of the case, primarily the historical context and the situation obtaining in other European countries.

As regards the historical context, the data presented in the judgment (paragraphs 12 to 14 ) provides information that is inaccurate, inadequate and of a very general nature.

The facts as presented in the judgment do not permit the slightest comparison to be made between Roma communities in Europe with respect, inter alia , to such matters as demographic evolution or levels of school attendance.

4. I will endeavour to supply some facts and figures to make up for this lack of information .

I should perhaps begin with the awful truth that, so far as the current territory of the Czech Republic is concerned, we are not talking about an “attempted” extermination of the Roma by the Nazis (see paragraph 13) but about their almost total an nihilation. Of the nearly 7,000 Roma who were living in the country at the start of the war, scarcely 600 survived [2] .

The situation is thus very different from that in other countries: the Czech Roma, almost all of whom were exterminated, were replaced from 1945 onwards by successive waves of new arrivals in their tens of thousands, mainly from Slovakia , Hungary and Romania . The vast majority of this new population were not only illiterate and completely uprooted, they did not speak the Czech language. The same is not true of other countries on whose territory the Roma have – in principle – be en living for decades and even centuries and have attained a degree of familiarity with the environment and language.

To complete and close this incursion into the historical and demographic context, I believe that a further comparison, which helps to explain the scale and complexity of the problem, would be useful.

An estimation of the numbers of Roma living in certain European countries has given the following minimum and maximum figures (which of course remain approximate):

min

max

population (millions)

Germany

110,000

140,000

80

France

300,000

400,000

60

Italy

90,000

120,000

60

United Kingdom

100,000

150,000

60

Poland

35,000

45,000

38

Portugal

40,000

50,000

10

Belgium

25,000

35,000

10

Czech Republic

200,000

250,000

10 [3] , [4]

These figures provide an indication of the scale of the problem facing the Czech Republic in the education field.

5. An important question that needs to be asked is what is the position in Europe and what standards or minimum requirements have to be met?

The question of the schooling and education of Roma children has for almost thirty years been the subject of analysis and, on the initiative of the Council of Europe, proposals by the European Commission and other institutions.

The judgment contains more than twenty-five pages (paragraphs 54- 107) of citations from Council of Europe texts , Community law and practice, United Nations materials and other sources.

However, the majority of the recommendations, reports and other documents it cites are relatively vague, largely theoretical and, most important of all, were published after the period with which the in stant case is concerned (1996- 99 – see paragraph 19 of the judgment ).

I should therefore like to quote the author mentioned above, whose opinion I agree with. In his book Roma in Europe , Jean-Pierre Liégeois stresses:

“ We must avoid over-use of vague terms ( ‘ emancipation ’ , ‘ autonomy ’ , ‘ integration ’ , ‘ inclusion ’ , etc.) which mask reality, put things in abstract terms and have no functional value ...

... officials often formulate complex questions and demand immediate answers, but such an approach leads only to empty promises or knee-jerk responses that assuage the electorate, or the liberal conscience, in the short term . ” [5]

In this connection, the sole resolution on the subject that is concrete and accurate – a major founding text of perhaps historic value – is the Resolution of the Council and the Ministers of Education meeting within the Council of 22 May 1989 on school provision for gypsy and traveller children [6] .

6. Regrettably and to my great surprise, this crucial document is not among the sources cited in the Grand Chamber ’ s judgment.

I should therefore like to quote some of the passages from this resolution:

“THE COUNCIL AND THE MINISTERS FOR EDUCATION, MEETING WITHIN THE COUNCIL,

...

Considering that the present situation is disturbing in general, and in particular with regard to schooling, that only 30 to 40 % of gypsy or traveller children attend school with any regularity, that half of them have never been to school [emphasis added], that a very small percentage attend secondary school and beyond, that the level of educational skills, especially reading and writing, bears little relationship to the presumed length of schooling, and that the illiteracy rate among adults is fr equently over 50% and in some places 80 % or more,

Considering that over [ 500 , 000 ] children are involved and that this number must constantly be revised upwards on account of the high proportion of young people in gypsy and traveller communities, half of whom are under 16 years of age,

Considering that schooling, in particular by providing the means of adapting to a changing environment and achieving personal and professional autonomy, is a key factor in the cultural, social and economic future of gypsy and traveller communities, that parents are aware of this fact and their desire for schooling for their children is increasing,

... ”

7. How astonishing! In the twelve countries that formed the European Union in 1989 it is acknowledged that between 250,000 and 300,000 children had never attended school.

It is an inescapable fact that the trend since then has tended to confirm this diagnosis. There is nothing to suggest an improvement in the situation in this sphere, especially with the enlargement of the European Union. The population of the Roma community is estimated (by the same source) at 400,000 in Slovakia , 600,000 in Hungary , 750,000 in Bulgaria and 2,100,000 in Romania . In total, there are more than 4,000,000 Roma children in Europe , approximately 2,000,000 of whom will, in all probability, never attend school in their lifetime s .

8. I am determined to bring this terrible and largely concealed truth out into the open, as I consider it shameful that such a situation should exist in Europe in the twenty-first century. What has caused this alarming silence?

9. Statistical data on the former Czechoslovakia indicates that in 1960 some 30% of Roma had never attended school. This figure has fallen and was only 10% in 1970.

A numerical comparison of the Czech Republic data on the number of children born and the numbe r attending school shows school- attendance levels attaining almost 100% twenty years later [7] .

10. Nevertheless, in this sorry state of affairs, some people consider it necessary to focus criticism on the Czech Republic , one of the few countries in Europe where virtually all children, including Roma children, attend school.

Furt her, for the school year 1989/ 90 there were 7,957 teachers for 58,889 pupils and for the school year 1992/ 93 8,325 teachers for 48,394 pupils [8] , that is to say one teacher for every seven pupils .

11. For years, European States have produced an often strange mix of achievements and projects which combine successes with failures. The problem concerns the education systems of many countries, not just the special schools [9] .

The Czech Republic has chosen to develop a system that was introduced back in the 1920s ( see paragraph 15 of the judgment ), and to improve it while providing the following procedural safeguards for placements in special schools ( see paragraphs 20 -21 ) :

– parental consent;

– recommendations of the educational psychology centres ;

– a right of appeal;

– an opportunity to transfer back to an ordinary primary school from a special school.

In a way, the Czech Republic has thereby established an education system that is inegalitarian. However, this inegalitarianism has a positive aim: to get children to attend school in order to have a chance to succeed through positive discrimination in favour of a disadvantaged population.

Despite this, the majority feel compelled to say that it is not satisfied that the difference in treatment between Roma children and non-Roma children pursued the legitimate aim of adapting the education system to the needs of the former and that there existed a reasonable relationship of proportionality between the means used and the aim pursued ( see paragraph 208 of the judgment ).

No one has conveyed the following opinion better than Arthur Schopenhauer, who was the first to express it:

“ This peculiar satisfaction in words contributes more than anything else to the perpetuation of errors . For, relying on the words and phrases received from his predecessors, each one confidently passes over obscurities and problems . ” [10]

12. I fully accept that , while much has been done to help certain categories of pupil acquire a basic knowledge, the situation regarding the education of Roma children in the Czech Republic is far from ideal and leaves room for improvement.

Nevertheless, a closer examination of the situation leads me to ask but one question: which country in Europe has done more, or indeed as much, in this sphere? To require more, to require an immediate and infallible solution, is to my mind asking too much, perhaps even the impossible, at least as far as the relevant period, which began just a f ew years after the fall of the c ommunist regime, is concerned.

13. I consider it important both in the analyses and in all the assessments and conclusions for a distinction to be drawn between what is desirable and what one might term realistic, possible or simply feasible.

This rule should also apply to the sphere of law generally and in the instant case in concreto . According to the applicants, no measures were taken to enable Roma children to overcome their cultural and linguistic disadvantages in the tests (see paragraph 40).

However, this is but another excellent illustration of the ir lack of realis m . It is, in my view , illusory to think that a situation that has obtained for decades, even centuries , can be changed from one day to the next by a few statutory provisions – u nless the idea is to dispense with the tests altogether or to make them an irrelevan ce .

14. Nor should it be forgotten that every school system entails not only education but also a process of assessment, differentiation, competition and selection. This fact of life is currently the subject of a wide debate on the reform of the French education system. The President of the French Republic has in a letter of 4 September 2007 to the teaching professions introduced the notion of a selection procedure for entry to lower and higher secondary education:

“No one should go into the first form unless he has shown that he is able to follow lower secondary-school education. No one should enter the fifth form unless he has demonstrated his ability to follow an upper secondary-school education ... ” [11]

15. I find the conclusions reached by the majority ( see paragraphs 205 ‑ 10 of the judgment ) somewhat contradictory. They note that difficulties exist in the education of Roma children not just in the Czech Republic but in other European States as well.

To describe the total absence of a school education for half of Roma children ( see points 6 and 7 above ) in a number of States as “difficulties” is an extraordinary euphemism. To explain this illogi cal approach, the majority note with satisfaction that, unlike some countries, the Czech Republic has chosen to tackle the problem ( see paragraph 205 of the judgment ).

The implication is that it is probably preferable and less risky to do nothing and to leave things as they are elsewhere, in other words to make no effort to confront the problems with which a large section of the Roma community is faced.

16. In my view, such abstract, theoretical reasoning renders the majority ’ s conclusions wholly unacceptable.