DISSENTING OPINION OF JUDGE Å IKUTA

To my great regret, I cannot share the opinion of the majority, which has found that in the instant case there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1. I wish to briefly explain my main reasons for not concurring.

I do agree that, in general t erms, the situation of Roma in central and e astern Europe is very complex, not easy and simple, and requires efforts from all the key playe rs involved, in particular the g overnments. This situation, however, has developed over hundreds of years and been influenced by various historical, political, economic, cultural and other factors. Governments have to play a proactive role in this process and are obliged therefore to adopt relevant measures and projects, with a view to reaching a satisfactory situation. The Roma issue should be seen from that perspective, as a living and continuously evolving issue.

The Court ’ s case-law [12] clearly establishes that a difference in treatment of “persons in otherwise similar situations” does not constitute discrimination contrary to Article 14 where it has an objective and reasonable justification; that is, where it can be shown that it pursues “a legitimate aim” or there is “a reasonable relationship of proportionality” between the means employed and the aim sought to be realised. The validity of the justification must be assessed by reference to the aim and effects of the measures under consideration, regard being had to the principles that apply in democratic societies.

In assessing whether and to what extent differences in “otherwise similar situations” justify different treatment, the Court has allowed the Contracting States a certain margin of appreciation [13] . The fact that the Government chose to fulfil the task of providing all children with compulsory education through the establishment of special schools was fully within the scope of their margin of appreciation.

The special schools were introduced for children with special learning difficulties and special learning ne eds as a way of fulfilling the g overnment ’ s task of securing to all children a basic education, which was fully compulsory. The introduction of special schools should be seen as another step in the above-mentioned process, whose ultimate aim was to reach a satisfactory, or at least an improved, educational situation. The introduction of special schooling, though not a perfect solution, should be seen as positive action on the part of the State to help children with special educational needs to overcome their different level of preparedness to attend an ordinary school and to follow the ordinary curriculum.

It can therefore be seen that, in general, there existed objective and reasonable justification for treating children placed in special schools differently from those placed in ordinary schools, on the basis of objective results in the psychological tests, administered by qualified professionals, who were able to select suitable methods. I do agree that the treatment of the children attending ordinary schools on the one hand and of those attending special schools on the other was different. But, at the same time, both types of school, ordinary and special, were accessible and also de facto attended, at the material time, by both categories of children – Roma and non-Roma.

The only decisive criterion, therefore, for determining which child would be recommended to which type of school was the outcome of the psychological test, a test designed by experts, qualified professionals, whose professionalism none of the parties disputed. The difference in treatment of the children attending either type of school (ordinary or special) was simply determined by the different level of intellectual capacity of the children concerned and by their different level of preparedness and readiness to successfully follow all the requirements imposed by the existing school system represented by the ordinary schools.

Therefore, isolated statistical evidence, especially when from a particular region of the country, does not by itself enable one to conclude that the placement of the applicants in special schools was the result of racial prejudice, because, by way of example, special schools were attended by both Roma and, at the same time, non-Roma children. Statistics are not by themselves sufficient to disclose a practice which could be classified as discriminatory ( see Hugh Jordan v. the United Kingdom , no. 24746/94, § 154 , 4 May 2001 ) . The fact that ordinary schools were attended by Roma children as well proves only that there existed other selection criteria than race or ethnic origin. Also, the fact that some of the applicants were transferred to ordinary schools proves that the situation was not irreversible.

It should also be noted that the parents of the children placed in the special schools agreed to their placement and some of them actually asked the competent authorities to place their children there. Such positive action on the part of the applicants ’ parents only serves to show that they were sufficiently and adequately informed about the existence of such schools and about their role in the schooling system. I have no doubt that, in general, a professional will be more competent to take a decision on the education of a minor child than its parents. Be that as it may, had there been any doubt that a decision of the parents to place their children in a special school was not “in the best interest of the child”, the Child Care Department of the Ostrava Welfare Office, which had the power and duty to bring such cases to the Juvenile Court to assess the best interest of the child, could have intervened. But that was not the case, as neither the Welfare Office, nor the applicants ’ parents, turned to the Juvenile Court, which was competent to deal with this issue.

Having said all this, I have come to the conclusion that the difference in treatment was between children attending ordinary schools on the one hand and children attending special schools on the other, regardless of whether they were of Roma or non-Roma origin. Such difference in treatment had an objective and reasonable justification and pursued a legitimate aim – providing all children with compulsory education.

However, I have also come to the conclusion that there was no difference in treatment between children attending the same special school, which children (Roma and non-Roma) are to be considered as “ persons in otherwise similar situations ”. I found no legal or factual ground in the instant case for the conclusion that Roma children attending special school were treated less favourably than non-Roma children attending the same special school. It is not acceptable to conclude that only Roma children attending special schools were discriminated against in comparison to non-Roma children (or all children) attending ordinary schools, since these two groups of children are not “persons in [an] otherwise similar situation”. It is also not acceptable to conclude this because both “groups” had the same conditions of access and attended both types of school: non-Roma children were attending special schools and, at the same time, Roma children were attending ordinary schools solely on the basis of the results achieved by passing the psychological test, which test was the same for all children regardless of their race.

Based on the above, I do not share the opinion that the applicants, because of their membership of the Roma community, were subjected to discriminatory treatment by their placement in special schools.

A N N E X

LIST OF THE APPLICANTS

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. P. Evans (200 4 ), “ Educating students with special needs: A comparison of inclusion practices in OECD countries ” , Education Canada 44 (1): 32-35.

[2] . A. Fras er (M. Mik lu šáková), The Gypsies , Prague , 2002, p. 275.

[3] . J.-P. Liégeois, Roma in Europe , Council of Europe Publishing, 2008, p. 31 .

[4] . Nevertheless, in a census taken of the population of the Czech Republic on 3 March 1991, only 32,903 people claimed to be members of the Roma ( Statistical Yearbook of the Czech Republic 1993 , Prague, 1993, p. 142).

[5] 1 . Op. cit. , pp. 274-75 .

[6] 2 . Official Journal of the European Communities C 153 of 21 June 1989, pp. 3 and 4.

[7] 1. Statistical Yearbook of the Czech Republic 1993, Prague , 1993, pp. 88 and 302 .

[8] 2. Op. cit. , Prague , 1993, p. 307.

[9] 3. In the public debate currently under way in France , it has been noted that “ 40% of pupils entering the first form do not have a basic education. At the end of the fourth form , 150 , 000 young people leave the system without mastering any subject (Editorial in Le Figaro , 4 Septemb er 2007) . The same newspaper related in an article on 7 September 2007 that “according to the Education Board , 40% of prima ry-school pupils – 300 , 000 children in all – leave each year with severe failings or in great difficulty” .

[10] 1. A. Schopenhauer, The World as Will and Representation (Volume II) , this translation by E.F.J. Payne , Dover , New York , 1966, p. 145 .

[11] . Le Figaro , 5 September 2007, p. 8.

[12] 1. See, for example, Willis v. the United Kingdom , no. 36042/97, § 48, ECHR 2002-IV .

[13] 2. Gaygusuz v. Austria , 16 September 1996, § 42, Reports of Judgments and Decisions 1996-IV .