30 Jun Discrimination based on segregation of Roma and Egyptian children in primary school

In the X and Others v. Albania (applications no. 73548/17 and 45521/19, 31,05.2022) the European Court of Human Rights found a violation of Article 1 of Protocol No. 12 of the European Convention on Human Rights. 

The applicants are 18 Albanian nationals of Roma and Egyptian ethnicity who together make up six households. The applicants allege that Roma or Egyptian ethnic pupils account for 89-100% of pupils in Naim Frashëri primary school – which their children attend – in an average year, despite being a minority of the town’s population. The case concerns the applicants’ complaints to the authorities concerning that situation, and the Commissioner for the Protection from Discrimination’s subsequent order that the Ministry of Education and Sport take “immediate measures to improve the situation and change the ratio” between Roma/Egyptian and other pupils attending the school”. 

The Court noted at the outset that the right to inclusive education, in the enjoyment of which the applicants alleged to have been treated differently, was provided for by domestic law (Article 18 of the Constitution and Education Act of 2012).

The Government did not dispute that the applicants’ situation amounted to segregation and that desegregation measures were called for, their only arguments being that that situation had been unintentional. In that connection, the Court notes that the “Naim Frashëri” school was not created exclusively for Roma/Egyptian children. In the Court’s view, the salient question is therefore whether the Government complied with their positive obligation to take steps to correct the applicants’ factual inequality. 

The Court found  that the Government did not set forth any objective reason for failing to implement two of the measures, namely the extension of the food support programme to four additional schools in the area – which could presumably encourage some of the Roma/Egyptian pupils of the school to move to other schools – and the merger of the “Naim Frashëri” school with three other schools. Both these measures were likely to have a more immediate beneficial effect on the Roma and Egyptian children. In this regard, the Court was unable to accept the authorities’ justification that the merger was not implemented due to the reconstruction of the “Naim Frashëri” school, as the reconstruction work lasted only for a limited period of time. By as late as the 2019/20 academic year the Roma/Egyptian pupils continued to represent 90% of the schools’ pupils.

In view of the Government’s argument that the segregation complained of was caused by the concentration of the Roma/Egyptian population in particular neighbourhoods near the segregated school, the authorities’ proposal to merge the latter with non-segregated schools in the city appeared a very pertinent solution indeed. Such a merger could have contributed to the creation of schools where the ratio between Roma/Egyptian and other pupils was reasonably proportional to the city-wide ratio for elementary schools. Moreover, the authorities had already implemented similar solutions in respect of segregated schools elsewhere in the country where in addition they had also provided transportation for the pupils. While it is not for the Court to indicate the specific measures to be undertaken to remedy a school segregation situation, it was nevertheless difficult to understand the reasons why this approach was not implemented in the present case too.

The Court considered that in the present case the delays and the non-implementation of appropriate desegregating measures cannot be considered as having had an objective and reasonable justification. There has accordingly been a violation of Article 1 of Protocol No. 12 to the Convention.

Reference from the Europan Court of Human Rights