THIRD SECTION

DECISION

Application no. 49516/17 Mariglen AVDIU and Others against Albania

The European Court of Human Rights (Third Section), sitting on 23 May 2023 as a Committee composed of:

Georgios A. Serghides , President , Darian Pavli, Oddný Mjöll Arnardóttir , judges , and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 49516/17) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 July 2017 by the applicants listed in the appended table (“the applicants”) who were represented before the Court by the European Roma Rights Centre (“ERRC”), a non-governmental organisation based in Brussels, Belgium and Qendra për Nisma Ligjore Qytetare, a non-governmental organisation based in Tirana;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the alleged discrimination against the applicants as a result of the Government’s failure to implement desegregation measures in an elementary school, which was attended exclusively by children of the Roma minority.

2. The applicants are 15 households of Roma origin living in Moravë, Berat, a village in Albania, where Roma make up about one-third of the population.

3. When the application was submitted, the children were attending or were expected to attend Avdyl Avdya school, an elementary school built in 2002. The school provided compulsory primary education in grouped classes. The number of children at this school varied from 23 to 29 and they were only Roma pupils. A few non-Roma families that live in the neighbourhood sent their children to other schools.

4. The pupils from Avdyl Avdya school could finish their compulsory studies in the Shaban Sollaku school and both schools were in the same administrative unit. In the years preceding the present application, only five to six pupils from Avdyl Avdya school had continued their studies to Shaban Sollaku school. According to the applicants that was due to the poor quality of education they received in Avdyl Avdya school.

5. Upon a complaint filed on 17 June 2015 by the ERRC, on 16 July 2015 the Regional Educational Department of Berat (the Educational Department) acknowledged the existence of segregation of Roma pupils in the Avdyl Avdya school and the need to put an end to it. However, it asserted that free transport of the children to Shaban Sollaku school was not possible, because the minimum distance for providing free transport of pupils to a school had not been satisfied.

6. Upon a further complaint filed on 3 September 2015 by the ERRC, the Albanian Commissioner for Protection from Discrimination (the Commissioner) on 16 December 2015 adopted a decision establishing that the applicants had been discriminated against by the Ministry and the Education Department, on the basis of their race, in the field of education. The Commissioner ordered the implementation of the necessary steps, including the closure of the school and free transport for Roma children to an integrated school.

7. On 10 April 2018 the applicants informed the Court that the applicant pupils had started to attend Shaban Sollaku school. On 27 March 2023 the applicants further informed the Court that the Ministry had approved the Avdyl Avdya school’s closure. The applicant pupils had continued to attend the integrated school, their schooling had continued regularly, and they had been welcomed at the new school. Transport had been arranged by public authorities and the parents were reimbursed the transportation expenses, initially by third parties and afterwards by the Berat Municipality. The applicants did not submit any claim with domestic courts maintaining that there were no effective remedies in their case.

Relevant domestic law

8. The relevant provision of the Albanian Anti-Discrimination Act, Law no. 10221 of 4 February 2010, reads as follows:

Section 1

“This law regulates the implementation of and compliance with the principle of equality in relation to race, ethnicity (...)”

Section 34

“1. Every person or group of persons who claim that they have been discriminated against on one of the grounds under section 1 of this law may lodge a claim with the competent court (...) for compensation of damages (...).

2. Lodging a complaint before the Commissioner is not a condition for submitting a claim (...).”

THE COURT’S ASSESSMENT

9. The applicants complained under Article 1 of Protocol No. 12 to the Convention that they were discriminated against in their right to an inclusive education as a result of the authorities’ failure to implement desegregating measures to address the over-representation of Roma pupils in the Avdyl Avdya school. They asserted that this placement resulted in depriving the applicant pupils of a genuine education.

10. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive the applicant of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Murray v. the Netherlands [GC], no. 10511/10, § 83, 26 April 2016, and Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012). This acknowledgement and redress are typically to be obtained through exhaustion of any domestic remedies (see Staykov v. Bulgaria , no. 49438/99, § 89, 12 October 2006, and C and D v. Croatia (dec.), no. 43317/07, 14 October 2010).

11. In the case X and Others v. Albania (nos. 73548/17 and 45521/19, § 63, 31 May 2022), the Court has emphasised that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see A.H. and Others v. Russia , nos. 6033/13 and 15 others, § 347, 17 January 2017). In that case the crux of the applicants’ complaints concerned the authorities’ failure to put an end to an ongoing situation, namely the segregation of Roma/Egyptian pupils in a school. Accordingly, the Court held that the remedy that offered the prospect of financial compensation alone, without preventing the continuation of the alleged violation, could not be considered effective (see, mutatis mutandis , Patranin v. Russia , no. 12983/14, § 86, 23 July 2015).

12. However, the situation of the applicants in the present case differs, not only because the authorities acknowledged that the applicants had been discriminated against, but they also remedied that situation. In that connection the Court notes that in the above-mentioned decision of 15 December 2015, the Commissioner established that the Ministry and the Educational Department had discriminated against Roma pupils in the field of education, including the applicants, on the basis of their race, because of their segregation in the Avdyl Avdya school. Given these findings, the Court considers that the national authorities expressly acknowledged a violation of the applicants’ right not to be discriminated against.

13. Further to this, the applicants informed the Court that the national authorities had taken several steps to address their complaints. The Avdyl Avdya school was officially closed in 2018. Since the second semester of the school year 2017/2018 the Berat Municipality had provided transport for the children to the new school and the reimbursement of the transportation costs to the families concerned. The applicants stated that the quality of education at the new school was adequate.

14. In the Court’s view the relevant authorities have complied with their positive obligation to take steps to correct the applicants’ alleged inequality and avoid their segregation at the Avdyl Avdya school.

15. The next issue to be assessed is whether the applicants received adequate compensation for the acknowledged violation of their right not to be discriminated against. In that connection the Court reiterates that the obligation to exhaust domestic remedies requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see, for example, Gherghina v. Romania [GC] (dec.), no. 42219/07, § 84, 9 July 2015).

16. The final decision of the Commissioner, acknowledging expressly the discrimination of the applicant pupils, gave the applicants a reasonable possibility of obtaining redress under Section 34 of the Anti-Discrimination Act (Law no. 10221 of 4 February 2010), which provides that anyone who has been discriminated against has the right to seek compensation of damages before a competent court, irrespective of whether he or she has filed a complaint with the Commissioner. However, the applicants have not sought compensation in a civil action against the State. While the institution of civil proceedings for damages in itself cannot fully remedy an ongoing infringement of the right to not to be discriminated against, such proceedings in combination with the Commissioner’s acknowledgment of a violation of their right not to be discriminated against, and the positive measures to address the discrimination, satisfy the requirements of effectiveness. It follows that when the Commissioner established that the applicants’ right not to be discriminated against had been violated, the applicants had to pursue the remedies for obtaining redress for that past breach. The applicants have failed to do so.

17. Accordingly, in so far as the applicants’ complaint concerns the period prior to April 2018, it must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

18. As regards the applicants’ claim for the period after April 2018, the Court has already assessed that the authorities have taken adequate measures to put an end to the situation the applicants complained of (see paragraph 16 above). The applicants have not put forward any arguments or information that would indicate otherwise. It follows that by desegregating the applicant pupils’ schooling and providing them with means of transport to a non ‑ segregated school in which the level of education was adequate, the national authorities have remedied the applicants’ situation and that therefore, the applicants may no longer claim to be the victims of the violation claimed.

19. Accordingly, in so far as the applicants’ complaint concerns the period since April 2018, it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must therefore be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 June 2023.

Olga Chernishova Georgios A. Serghides Deputy Registrar President

Appendix

List of applicants

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.Mariglen AVDIU

1998Albanian

Berat

2.Elio AVDIU

2013Albanian

Berat

3.Endri AVDIU

2004Albanian

Berat

4.Ermal AVDIU

1984Albanian

Berat

5.Eva AVDIU

2009Albanian

Berat

6.Flori AVDIU

2004Albanian

Berat

7.Iljaz AVDIU

1973Albanian

Berat

8.Leonard AVDIU

1987Albanian

Berat

9.Nadia AVDIU

2012Albanian

Berat

10.Paloma AVDIU

2009Albanian

Berat

11.Senada AVDIU

2007Albanian

Berat

12.Juliana MILE

2008Albanian

Berat

13.Klodjan MILE

1976Albanian

Berat

14.Nurie MILE

1975Albanian

Berat

15.Xhensia MILE

2004Albanian

Berat

16.Adelaide MYRTELI

2009Albanian

Berat

17.Adelajda MYRTELI

2009Albanian

Berat

18.Aleksandros MYRTELI

2008Albanian

Berat

19.Alex MYRTELI

2003Albanian

Berat

20.Alexandro MYRTELI

2008Albanian

Berat

21.Angelo MYRTELI

2008Albanian

Berat

22.Antonela MYRTELI

2014Albanian

Berat

23.Arjola MYRTELI

2003Albanian

Berat

24.Elton MYRTELI

1986Albanian

Berat

25.Ermal MYRTELI

1988Albanian

Berat

26.Gabriel MYRTELI

2011Albanian

Berat

27.Iljada MYRTELI

2005Albanian

Berat

28.Jolanda MYRTELI

1988Albanian

Berat

29.Kristo MYRTELI

2007Albanian

Berat

30.Laura MYRTELI

2008Albanian

Berat

31.Laureta MYRTELI

1982Albanian

Berat

32.Liverin MYRTELI

2016Albanian

Berat

33.Sentiljan MYRTELI

1986Albanian

Berat

34.Valter MYRTELI

1983Albanian

Berat

35.Vullnet MYRTELI

1968Albanian

Berat

36.Dallandyshe TIFI

1982Albanian

Berat

37.Danjel TIFI

2005Albanian

Berat

38.Manuel TIFI

2005Albanian

Berat

39.Elona YZEIRI

1984Albanian

Berat

40.Klaus YZEIRI

2004Albanian

Berat

41.Martino YZEIRI

2009Albanian

Berat

42.Vionis YZEIRI

2006Albanian

Berat