DISSENTING OPINION OF JUDGE BORREGO BORREGO

(Translation)

1. I am somewhat saddened by the judgment in the present case.

2. In 2002 Judge Bonello said that he found it “ particularly disturbing that the Court, in over fifty years of pertinacious judicial scrutiny, has not, to date, found one single instance of violation of the right [guaranteed by Article 2 or Article 3 ] induced by the race ... of the victim ” ( see Anguelova v. Bulgaria , no. 38361/97, ECHR 2002-IV, dissenting opinion). While I agree with Judge Bonello ’ s criticism that the absence, five years ago, of a single case of racial discrimination concerning the core Convention rights was disturbing, the judgment in the present case has now got the Court off to a flying start. The Grand Chamber has in this judgment behaved like a Formula One car, hurtling at high speed into the new and difficult terrain of education and, in so doing, has inevitably strayed far from the line normally followed by the Court.

3. In my opinion, the Second Section ’ s judgment of 17 February 2006 in the present case was sound and wise and a good example of the Court ’ s case-law. Regrettably, I cannot say the same of the Grand Chamber judgment. (The Chamber judgment is seventeen pages long, the Grand Chamber ’ s, seventy-eight pages, which just goes to show that the length of a judgment is no measure of its sagacity .)

I will focus on two points only .

4. The approach:

After noting the concerns of various organisations about the realities of the Roma ’ s situation, the Chamber stated: “ The Court points out, however, that its role is different from that of the aforementioned bodies and that, like the Czech Constitutional Court , it is not its task to assess the overall social context. Its sole task in the instant case is to examine the individual applications ... ” ( § 45).

5. Yet the Grand Chamber does the exact opposite. In contradiction with the role which all judicial bodies assume, the entire judgment is devoted to assessing the overall social context – from the first page (“historical background”) to the last paragraph, including a review of the “Council of Europe sources” ( fourteen pages), “Community law and practice” ( five pages), United Nations materials ( seven pages) and “other sources” ( three pages, which, curiously, with the exception of the reference to the European Monitoring Centre , are taken exclusively from the Anglo-American system, that is, the House of Lords and the United States Supreme Court). Thus, to cite but one example, the Court states at the start of paragraph 182: “ The Court notes that as a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority . ” Is it the Court ’ s role to be doing this?

6. Following this same line, which to my mind is not one appropriate for a court, the Grand Chamber stated in paragraph 209 after finding a discriminatory difference in treatment between Roma and non-Roma children: “ ... since it has been established that the relevant legislation ... had a disproportionately prejudicial effect on the Roma community, the Court considers that the applicants as members of that community necessarily suffered the same discriminatory treatment. Accordingly, it does not need to examine their individual cases . ”

7. This, then, is the Court ’ s new role: to become a second ECRI (European Commission against Racism and Intolerance) and dispense with an examination of the individual applications, for example the situation of applicants nos. 9, 10, 11, 16 and 17, in complete contrast to the procedure followed by the Chamber in paragraphs 49 and 50 of its judgment.

8. At the hearing on 17 January 2007 the representatives (from London and New York ) of the applicant children (from Ostrava ) confined themselves in their oral submissions to an account of the discrimination which they say the Roma are subjected to in Europe .

9. None of the applicant children or the parents of those applicants who were still minors were present at the hearing. The individual circumstances of the applicants and their parents were forgotten. Since Rule 36 § 4 of the Rules of Court states that representatives act on behalf of the applicants, I put a very simple question to the two British and American representatives – had they met the minor applicants and/or their parents? And had they been to Ostrava ? I did not receive an answer.

10. I still have the same impression: the hearing room of the Grand Chamber had become an ivory tower, divorced from the life and problems of the minor applicants and their parents, a place where those in attendance could display their superiority over the absentees.

11. The Roma parents and the education of their children:

On the subject of the children ’ s education, the Chamber judgment states: “ [T]he Court notes that it was the parents ’ responsibility, as part of their natural duty to ensure that their children receive an education ... ” ( at § 51). After an analysis of the facts the Chamber went on to hold that there had been no violation of Article 14 taken in conjunction with Article 2 of Protocol No. 1.

12. I consider the stance taken by the Grand Chamber with respect to the parents of the minor applicants to be extremely preoccupying and, since it concerned all the Roma parents, one that is quite frankly unacceptable. It represents a major deviation from the norm and reflects a sentiment of superiority that ought to be inconceivable in a court of human rights and strikes at the human dignity of the Roma parents.

13. The Grand Chamber begins by calling into question the capacity of Roma parents to perform their parental duty. The judgment states “ t he Court is not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent ” ( at paragraph 203). Such assertions are unduly harsh, superfluous and, above all, unwarranted.

14. The Grand Chamber then proceeds to compound its negative appraisal of the Roma parents: “ [ T ] he Grand Chamber considers that, even assuming the conditions [for an informed consent] were satisfied, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest ... ” (paragraph 204).

I find this particularly disquieting. The Grand Chamber asserts that all parents of Roma children, “even assuming” them to be capable of giving informed consent, are unable to choose their children ’ s school. Such a view can lead to the awful experiences with which we are only too familiar of children being “abducted” from their parents when the latter belong to a particular soc ial group because certain “well intentioned” people feel constrained to impose their conception of life on all. An example of the sad human tradition of fighting racism through racism.

15 . How cynical: the parents of the applicant minors are not qualified to bring up their children, even though they are qualified to sign an authority in favour of British and North American representatives whom they do not even know!

16 . Clearly, I agree with the dissenting opinions expressed by my colleagues, whose views I wholly subscribe to.

17 . Any departure by the European Court from its judicial role will lead it into a state of confusion and that can only have negative consequences for Europe . The deviation from the norm implicit in this judgment is substantial and the fact that all Roma parents are deemed unfit to educate their children is, in my view, insulting. I therefore take my place alongside the victims of that insult and declare: “ Jsem český R om ” (I am a Czech Rom ).